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L EC T RO NI C
O U R NAL S OF T H E
U. S. D
E PAR T ME NT OF
TA T E
From the Editors
Accountability in Government
HIS FAMOUS Gettysburg Address, delivered in 1863 during the American Civil President Abraham Lincoln spoke of War, the importance of “government of the people, by people, for the people.” Lincoln, like the the Founding Fathers who wrote the U.S. Constitution, believed that in order for the people to rule, government must be accountable—not just through elections, but through of safeguards, some of which a myriad were into the Constitution, many of built which evolved as Americans gained a slowly greater appreciation of what their commitment to democracy involved. In this electronic journal, we explore the ramifications of government accountability in a modern democracy. A central theme of the journal is that a written constitution assuring accountability is an insufficient guarantee — promoting government accountability that also requires a rededication of purpose by each generation as it responds to changing circum-
stances. American government, for example, is much more democratic, much more account- it was when the Republic was able than formed more than 200 years ago. How did this hap- What changes were made, and pen? why? are the essential questions explored These in the following pages. In our lead article, Robert S. Barker, professor of law at Duquesne University School of Law, looks at the bedrock components of accountability in the U.S. system. He discuss- separation of powers among the es the judiciary, legislature and executive; judicial review; Bill of Rights, particularly the and the First Amendment guaranteeing freedom of expression. Despite the good work of the Founding Fathers, Barker concludes that ensuring accountability in government, like guaranteeing“requires liberty, eternal vigilance.” Holding government accountable, however, is difficult without essential information, with- ability to assess official conduct. That out the is
a key reason why government actions, in so far is possible, should be transparent. as The importance of transparency and open govern- explored in an article by Robert ment is Vaughn, of law at Washington College of professor Law, American University. He discusses the nation’s of information laws, which were freedom passed relatively recently in the nation’s history, “sunshine” laws requiring open government, “whistleblower” protection acts and the role of privacy protection and ethics guarantees. No matter how principled a particular administration, or how persistent individual citizens may be in scrutinizing their government, external watchdogs have become an essential overseeing government actions. tool in Robert Schmuhl, professor of American studies and director, John W. Gallivan Program in Journalism, Ethics and Democracy, University Dame, discusses the role of of Notre various nongovernmental organizations (NGOs) in providing this important oversight role. He emphasizes the press—a diverse press— but discusses the role of public also advocacy such as Common groups Cause. “Whistleblowers,” those daring who individuals are willing to risk reputation and livelihood government malfeasance, have to expose long a feature of the American been landscape. Unfortunately, some really did pay a high price their commitment to integrity in for government reason why the Whistleblower —a key Protection Act of 1989 was passed. Thomas Devine, legal director for the Government Accountability Project (GAP), a nonprofit, nonpartisan interestthat protects the rights of employees group who “blown the whistle” on illicit have government actions, discusses the legislation in an interview with Contributing Editor David Pitts. Devine
leaves no doubt of his belief that whistleblower protection legislation would be beneficial to all democracies, not just the United States. No government, no matter how democratic or efficient, can long be effective if it is corrupt —if institutions or individuals lack integrity and motivated by self-interest and private are gain than the public good. Jane S. Ley, rather deputy for government relations and director special at the U.S. Office of Government projects Ethics, explores the vital issue of ethics in government. the legal framework that She discusses has evolved over the years to foster ethical conduct — dealing with such issues as codes of conduct, of interest and financial disclosure. conflict She concludes that the system in place, as elaborate is, “will need to continue to adapt as it now to new challenges.” One of the legacies of the Progressive Movement, a period of great social change at beginning of the last century dedicated the to making the United States more democratic, was adoption of ballot measures by an the increasing number of states. This was an experiment in direct democracy or direct accountability — enabling citizens not only to directly elect their officials, but to directly decide issues. Currently, 26 of the 50 states permit ballot measures. Contributing Editor David Pitts profiles one case in particular—a recent ballot measure County, Florida. He explains how in Lee ballot measures work in practice and discusses the pros and cons of ballot measures, particularly from a constitutional point of view. The journal concludes with a variety of reference resources—books, articles and Internet sites—affording additional insights on the vital issue of accountability in government.
Content s issues of
6 G OVERNMENT ACCOUNTABILITY AND ITS LIMITS
Rober t S. Barker, professor of law at Duquesne University School of Law, looks at the key components of accountability in the U.S. system of government.
13 TRANSPARENCY — T HE MECHANISMS : O PEN G OVERNMENT AND ACCOUNTABILITY
Rober t G.Vaughn, professor of law at Washington College of Law,American University, discusses how the concept of transparency in government incorporates the values underlying democratic accountability.
21 G OVERNMENT ACCOUNTABILITY AND EXTERNAL W ATCHDOGS
Robert Schmuhl, professor of American studies and director, John W. Gallivan Program in Journalism, Ethics and Democracy, University of Notre Dame, examines past events and looks at recent developments that enable citizens as never before to monitor their government.
26 T HE W HISTLEBLOWER PROTECTION ACT
Contributing Editor David Pitts talks with Thomas Devine, legal director for the Government Accountability Project (GAP), a nonprofit, nonpartisan public interest group that defends the rights of employees who “blow the whistle” on illegal or potentially harmful activities of government agencies.
32 U.S. G
Jane S. Ley, deputy director for government relations and special projects, system and how it has evolved over time.
U.S. Office of Government Ethics, discusses how the federal government regulates itself and explores the
39 LEE C OUNTY ,F
Contributing Editor David Pitts examines a case study in how ballot measures work, when citizens can hold government directly accountable for its actions.
Articles and books on government accountability.
48 INTERNET SITES
Internet sites that feature government accountability themes. The opinions expressed on other Internet sites listed here do not necessarily represent the views of the U.S. government.
L E CTR ON IC
E MOC R AC Y
SS UE S OF CC O UN TAB I LI T Y IN
E PART M E NT OF
T AT E
U GU ST
PUBLI SHER ED IT OR MAN
Jud it h Sieg el An th on y W. S ar it i An d re a McG li nc h ey Wayn e Ha ll De bo r ah M. S. B ro wn
C O NT RI BU TI NG
ED I TO RS
Es te lle B air d Mo n a E sq u eti ni C har la Hatt o n D avi d P it ts
EDI TO R IAL
B OA R D
Ho ward C i nco tt a Ju d i th S ie ge l Le on a rd o Wil li ams
ED IT OR ED IT OR
C O N SULTI NG INTE RNE T
/ TE XT EDITOR
RE FE REN CE ART G RAPH
SPECI ALI ST D I REC TO R ASSI STAN T
An d re a McG li n ch ey Di ane Wo o lve r to n Syl via S co tt
Th e O ffi ce o f Int e r na tio n al I nfo r m at io n P r o gr a ms o f. Dep ar tm en t o f St at e p r o vid e s pr o d u ct s an d s e r v ices t h at ex p lain U. S . p o lic ies t o fo r eig n a ud ie n ces . Th e Off ice p u b lis he s five e lec tr o S t he U . u r na ls t h at e x amin e ma jo r is s u es fa cin g th e U n it edic St at es an d t h e in te r n at io n al co mmu n ity. T he E con n c Pe rs p e cti Gl o ba l I ss I s su es of D e mocr S. F ore i gn P ol i cy A g en n jo jo ur omi , ve , u , U. als d U. S . So ci et y a nd V — u r ov id e a na lys is , co mme n ta r y a nd b ac kgr o u nd in fo r m at io n in t h eir t he ma tics ar e as . A ll jo u r na l edes io n s ap p ea r in E n glis h , F r en ch an d P o r tu gu e s e l an gu age ve r s io n acy da an — al p it es a nd s e lec te d is s u e s als o apsp, e ar in A r ab ic , Ru s si an an d Sp an is h . • A ne w En glis h - lan gu age is s ue is p u blis h e d e ve r y th r e e to s ix w e ek s . Tr an s lat ed ve r s io ns n o rm ally fo llo w th e E n glis h o r ig ina l b y t wo t o ee ks . Th e o r d er in w h ich th e th e mat ic e dit io n s a p pe ar is ir r egu la r, a s s o me ed it io n s p u b lis h mo r e is s u e s t h an o th e r s . • Th e o p inio n s ex p r es s e d in t he jo ur n als d o no t ne ce s s ar ily r e fle ct t h e w f o ur v iew o licie s o f t he U . S. go ve r n me nt . Th e U . S . De p ar t me nt o f St at e as s um es n o r e sp o n s ib ility fo r t he co n t en t an d co n tin u ed a cce s s ibil ity o f In te r n et s it es lin ke d t o he r ein ; s uc h r e s p o ns ib ilit y r e or p s s ide sly wit h t h e p u blis h e r s o f t h o s e s ite s . A r tic les ma y b e re p r o du ce d a n d t r an s lat ed o ut s id e t he U nit e d S ta te s un le s s t he ar t icle s car r y c o py r igh t r es t r ict io n s . • C u r re n t o r b a ck is s u es o f th e jo u s o le r n n be f o un d o n t he O ffic e o f In t er n at io n al In fo r ma tio n P r o gr a ms ’ In te r na ti o na l H o me P age o n t he Wo r ld Wid e Web at ht t p : // us in fo . s t at e . go v/ jo ur n als / jo u r na ls . ht m. Th e y a re av aila ble in s e ca als ve r al o n ic fo r ma ts t o fac ilita te vie w ing o n- lin e , t ra n sf er r in g, do w n lo ad in g, an d p r in tin g. • C o mme n ts ar e we lco m e S . E mb ras s c al a tt e nt io n P u b lic Dip lo mac y Se ct io n ) o r at th e ed it o r e lec tr at yo u lo y ( U ff ice s: Ed itIso s u es of D e mocrmo c r acy an d H um an Rig h ts — IIP /T/ DH R, U . S . Dep a r t men t o f S t at e , 30 1 4t h S t r ee t, S. W. , Wa s hin gt o n , D. C . 2 05 4 7 , U ni te d S t at es o f A me ial o . De r, acy, r ica . e: m ail: e jd em os @ p d. s t at e . go v
but that those entrusted with it should be kept dependence on the people… — Madison. America OVERNMENTAL — that is. discusses the key components of accountability in this article on the U. Barker. the most important guarantee of government accountability is the r ight of citizens to control their gover nment through elections. 37 in …the concentration of power and the subjec. The genius of republican liberty seems to demand…not only that all power should be derived from the people. Rober t S. — Alexis de Tocqueville. ACCOUNTABILITY duty of public officials to reportthe actions their to citizens.S. as in any democracy. who has written and spoken widely about the subject. th essential perhaps democracy. Thee purpose of this element of article G 6 . Book IV . system. No. Democracy in Part II. James The Federalist .individuals will increase amongst tion of demo. Barker In the United States. and the right of the citizens to the take action against those officials whose conduct the citizens consider unsatisfactory — is an essential element. But elections are not the only way of holding public officials to account.nations…in the same proportion as cratic their ignorance . professor of law at Duquesne University School of Law.Accountability in Government Government Accountability and Its Limits by Robert S.
Secrecy. “from time to time” to give the Congress “Information of the State of the Union” and. Statutes and Ordinances In addition to the aforementioned constitution. all civil officers of the United are subject to removal from office States for misconduct. except. and from time to time publish the same.” Importantly. for example. at the Desire of one fifth of those Present.refers to a law enacted by a city. be entered Journal. promote giving the right to inspect public citizens records. For example. (The term “statute” refers to a law enacted by Congress of the United States or by the the legislature of one of the states. upon impeachment by the House of Representatives and conviction by the Senate. The Constitution also requires that “a regular Statement and Account of the Receipts and Expenditures of all public Money…be published from time to time. Barker is to review some aspects of governmental accountability as reflected in the constitutions. The term “ordi.public “shall trial. Finally.. history the United States. he is required to state his objections and those objections must be published in the journal of the house in which the bill originated. nance” county 7 . state statutes and local ordinances which directly accountability by. Section 5. whenever he vetoes any bill passed by Congress.Parts as may in their Judgment ing such require and the Yeas and Nays [that is.there are many federal and al guarantees.. and political traditions of laws.and extraordinary means of removing nary public officials. the “for” and “against”] of the members votes of either house on any question shall. The United States Constitution The Constitution of the United States contains a number of provisions which deal directly with governmental accountability. the Constitution guarantees accountability by imposing fixed terms of office on those who exercise federal legislative and executive power. All of these guarantees pro.accountability by requiring government mote to disclose its activities. public officials to disclose requiring their sources of income. requires that each house Article I. The constitutions of the 50 states various provisions comparable to contain those found in the national Constitution. requiring candidates for public office to disclose the names of those who contribute to their campaigns.” on the The president is required. and requiring that legislative meetings be open to the public. and by providing ordi.” The Sixth Amendment the accused in a criminal provides that case enjoy the right to a. of Congress “keep a Journal of its Proceedings.Robert S.
the words of Thomas Jefferson in an earlier treatise state of Virginia.. “Which is more important. Separation of Powers When the colonies declared themselves independent. When the colonists established their colonial legislatures. Although each state determines for itself. “All politics is local!” He was right.extent of governmental power enjoyed cise by local governments. in the 13 original colonies. “Tip” O’Neill. immediately answered. women and thosedid not own land were not permitted who to vote. however. they generally followed the practice of having each borough. so that no person should rate exer-the powers of more than one of them at cise the same time... which. and his answer one of the characteristics of identified the American political tradition which promotes governmental accountability. in turn.. through its own constitution and laws.that no could transcend their legal limits one without being effectively checked and restrained by the others.. Ever since colonial times. are both descriptive on the and prophetic : “The concentration of [all the powers of government] in the same hands is precisely the definition of despotic government. or county elect one representative to the lower of the legislature of that house colony.. a newspaper reporter asked the mayor of a large American city. In this regard. and responsible to a partic-defined community. The right to vote was in those days usually severely restricted — slaves. were grouped into counties. exec. both legally and politically. The prac. national politics or local politics?” The mayor. by the but colonial systems of local government the and legislative representation laid the foundation accountability: local officials for ongoing were to. identified with. the role of local its govern. Local Government Some years ago. equally important are those indirect guarantees of accountability which flow from the structure of American government and the history of American politics. For this reason. known and accountability was thus natural. important.. the basis of citizen participation in government has been local government. township. the pre.or other local government.” 8 . of course. again ensuring a ular.always and everywhere been ment has very important. The government we fought for was one not only found-free principles but in which the powers ed on of government should be so divided and balanced among several bodies of magistracy. speaker of the House the late of Representatives.organized themselves into boroughs tlers and townships. quoting Thomas P.of electing legislators by singletice member meant that each legislator was districts chosen by. Many important questions were decidedCrown rather than by the colonists. Such provisions are..and judicial departments should be utive sepa-and distinct.) These and other provisions promote accountability in a direct and obvious way. and dependent upon their neighbors. the Everywhere set..the legislative. the new United States of America the local-government foundations retained laid the colonial era and built upon them during a system of vertical and horizontal separations of powers which would continue to guarantee governmental accountability. high degree of accountability.
well as in every other business of ment. legislative. made explicit by the Tenth Amendment to the Constitution. thus establishing “separation of powers” in the strict sense. and the allocation of many govern. (2) that of the State. One of the results of these divisions of power is that in my own state. the creation of a variety of checks and balances among the three branches of government.of intra-governmental accountability. Constitution drafted in Philadelphia in 1787. in the of his or general to choose among the candidates of election.delegated to the federal government ers not by Constitution are. regulate commerce among the states and to and with foreign countries.of power by any one of the three cise branchesfederal government is limited in of the variousby the powers given to the other ways branches. others.S.of the county. counties and municipalities. for relates to our own citizens exclusively. Federal governmental power is divided among three branches. The Constitution gives to federal (or “national”) government the certain such as the power to conduct powers. which of course. and (4) the ward cerns republics.) tem The aspect of this arrangement is the third vertical of governmental power in such a division way each governmental task is assigned to that the smallest. establishes the principle of federalism . (This is usually same called and balances. later. by division and subdivision of duties it is aloneall matters. Pennsylvania. Jefferson later said: “We should…marshal our government (1) intogeneral federal republic. for all a concerns foreign and federal. every year is an and in most election year. during each year some municipal.This means that the citizen has the tion.of powers” in the strict sense). oppor-to go to the polls twice each year: first. the division of that power in such a way that the authority of one branch in a given matter is lim. small and yet numerous and for the interesting of the neighborhood. concerns Thus in govern. All of these aspects of separation of powers are reflected in the U. Samuel Kercheval. This approach to separation of powers also has carried out within each state in been its state constitution through the division own of power among three branches within the state government. peace.In a letter to a contemporary. encompasses federalism.by the authority of another branch over ited the or a related matter. can be that managed to perfection. for the duties and the con.” This division of power. and. that is. allocation of governmental power the among branches of government (this is separate “sepa. what (3) county republics. to choose the candidates her party. Those enumerated powers. executive and judicial.” It is. in the words of the the Constitution itself. county. tunity in the primary election. the exer. “reserved to the states respectively. may be exercised by the federal government. in essence. as life. or to the people. ration second. most local governmental unit able to perform it. the 9 . foreign to decide questions of war and relations. and all powers implied therein. great and small. state or federal offices are filled by elec. This is the principle of subsidiarity.” The “separation of powers” described by Jefferson has at least three dimensions: First.powers to two lower levels of local mental government. thus establishing the principle of checks and balances . a “checks sys. Moreover. All pow.
arguing that the president had exceeded his powers under the Constitution. seeking an order directing the Secretary of State. Marbury argued that a federal statute gave the Supreme Court power to exercise original jurisdiction in cases such as his. thus. is subject to an scrutiny. The steel companies immediately brought suit against the federal government. James Madison. Accordingly. it. which conflicts with law. U. in order to keep them operating. governmental account.Kentucky. Marbury’s “commission” (that is. Sawye ). Three famous decisions of the Supreme Court illustrate how this process of judicial serves as an instrument of review accountability: In 1952. nominated one of William to be justice of the peace in Marbury the District of Columbia. Because. indeed exceeded his constitutional powers. of Madison case. and tion to that Marbury’s case was not within any of those categories. Supreme Court. the document certifying his appointment) was not delivered to him. and the 10 Constitution.) in Lexington. President Harry Truman issued was to an executive order placing the steel mills under the control of the federal government. federal and As such.S. established the ple Madison laws andprinci. the Constitution is the “supreme law of the land. there was a con. the Supreme Court concluded Constitution limits its original that the jurisdic-certain categories of suits. this means that government is subject to constant and. by a vote of 6r concluded that the president had to3. As a practical matter.exercised and enforced by the ability is tribunals through the process known as “judicial which began with the landmark review. during the Korean War. and Adam’s presidential term expired. The government immediately returned the steel mills to . Thomas Jefferson.S. However. and dismissed Marbury’sfor claim lack of jurisdiction. A few hours before the the strike begin. which is States annually by the published of State Council Governments. However. state or local — may obtain redress through appropriate litigation. ignored the statute. in the closing days his presidency. and that any individual who believes that his or her constitutional rights are being violated by any level of government — federal. every year. its ( v. Marbury then brought suit in the U. the steelworkers union announced its intention to go on strike against the major steel manufacturers in United States. the Court said.of the United States Supreme Court sion in 1803 in the case Marbury v. President John Adams. ongoing of accountability. Marbury v. (The best process single of information on state government source is The Book of the .between the federal statute. ordered that the commission not be delivered.” the Constitution must prevail over any otherfederal or state. the Court continued. In decision Youngstown Sheet & Tube Co. to deliver the commission to him. which flict purported to confer original jurisdiction. The new president.various parties. state decide hundreds of cases in which courts government officials are required to defend the constitutionality of their actions.governmental that all other actions must conform to the Constitution. the Court applied the Constitution. In that . Judicial Review In a very important way. Thus. the Supreme Court. which purported to deny original jurisdiction.” deci.
it was established that the accusations 11 .Nevertheless.” federal court ordered the president to criminal deliver court certain tapes of presidential to the conversations which were. had conspired to impede the investiga. In the early 1960s. assembly.is not absolute.sued New cial Yorkfor defamation. the tapes to the criminal court. practices and decisions governmental ensuring accountability wouldbeen. Freedom of Expression The foregoing rules. The Court vailing con. of president’s advisors. Board of Education. petition and association.” Brow of “equal The n decision. by a unanimous vote in United States v. and probably the Nixon himself.their owners. but rather must that privilege in each instance be weighed against the counter-interest in disclosure. Several former members tion of the of president’s staff were charged with the crimes to the Watergate burglary and related “cover-In the course of their trial. Two years out of earlier.schools violate the constitutional lic guarantee protection of the laws. located in a building complexas “Watergate.” the confidentiality of presidential conversations. It known soon became clear that the burglary had been orga. The Supreme Court. decided against Nixon the president and ordered him to deliver the tapes criminal court. serves to demonstrate the close connection between of expression and government freedom accountability . New York the Times published a political advertisement whichcertain accusations of misconduct about made a city official in the state of Alabama. have tion” estab. press.crime. the Perhaps the most famous exercise of cial judireview in recent decades was the Supreme Court decision in the 1954 case Brown of v. The offi. In 1974.” The details of these First Amendment beyond the scope of this brief freedoms are arti. not just to those who able to constitute the “majority” at any given moment. allegedly. arguing the thathad the right to preserve the secrecy of he presidential communications.the principle that government is lished account-all the people.” was burglarized. in accordance with the decision of Court. the headquarters of the Democratic National Committee.that since President Nixon had cluded not asserted particula need for secrecy. The Court reasoned to the that while the president does enjoy an “executive which enables him to maintain privilege. a number Nixon. the Supreme Court was faced with a case of great constitutional importance arising the Watergate scandal. and would now be. The president refused. any r his interests were outweighed by the obvious need to maintain the integrity of the criminal The president promptly delivered process. ineffective have were for another set of principles deeply it not rooted in American history and law: freedom of speech. the Times At trial. one case in particular cle. which are guaranteed by the First Amendment to the Constitution and are often collectively referred to as “freedom of expression. relevant to case.. the up.by persons close to President nized Richardand that after the burglary. in which the Court held that laws establishing racial segregation in pub. and numerous other “equal protec-decisions which followed it.
holding that the right to criticize government is so important that even false accusa. requires eternal vigilance. and the court ordered Time to the damages to the defamed official.the direction of governmental policy trol and identity of those who exercise the governmental power. the United cials States long tradition of respect for these has a freedoms. All other constitutional and statutory provisions are but auxiliary measures. Therefore.were false. No . Is su es o f Dem oc r ac y. the courts have decided that the constitutional obligation of the federal govern. 2 . c if such limitation is necessary to ensure that the accused will receive fai trial a r . 5 . Accountability.S. who take responsible s public affairs seriously. As the Supreme Court acknowledged in the Watergateinterest of the government in. and the constitutional guarantee of a publi trial may in extreme cases be limited. as in any the democracy. expressly 12 excepts “such Parts as may in their judgment require Secrecy. The Limits of Accountability Accountability has its limits. The Constitution itself. or acts the with reckless disregard for the truth. Supreme Court reversed the decision. a public official may recover damages for defamation only when the speaker (whether an individual or a newspaper) either knows that defamatory statement is false. A ugust 2 00 0 . voter . s pay On appeal. and. while requiring the Senate House of Representatives to keep and the and publish records of their proceedings. Fortunately. that public officials enjoy very little protection from criticism. the for example.the confidentiality of diplomatic taining communications might.to account. but theymeaningless to a complacent. Accountable government depends ultimately on responsible citizens or. the U.about tions public officials are constitutionally protected.publish an “account of receipts ment to and expenditures” does not require the publication of information which would compromise national security. In the United States. New York Times v. This decision. they cannot possibly call public offi. inform themselvesissues and the candidates. through the electoral process. more precisely. and have the moral to distinguish right from sense wrong. conversely. like liberty. protecting national security or main.important most guarantee of governmental is the right of the citizens to accountability con.is based on cism error. vote regularly. even when that criti. Reporting and disclosure requirements and open-meeting laws have their place. case. . and publish their ideas. Unless citizens can speak openly. debate about the vigorously. established Sullivan that freedom of the principle expression is most protected when one is criticizing the highly government and government officials. and organize debate themselves according to their own criteria into groups and principles. outweigh the reasons for disclosure. in any given situation. I IP El ec tro n ic J ou rn als . cynical are or self-indulgent citizenry. Vo l . the Court concluded.” Further.
Access to infor mation permits citizens to challenge government actions with which they disagree and to seek redress for official misconduct. Access to information ment permits to challenge government actions citizens with they disagree and to seek redress which for official misconduct. professor of law at Washington College of Law.is but a prologue to a farce or a ing it. values THE 13 . fourth president of the United States. to understand and to evaluate the decisions and conduct of govern-officials. to understand and to evaluate the decisions and conduct of government officials. accountability and access to government James Madison. a number of laws assure the rights of citizens to observe. “A popular government quoted with-popular information or the means of out acquir. American Univer sity.Vaughn. Access to information also deters official misconduct by reminding public officials of their accountability.” FOUNDERS of the United States recognized the relationship between democracy.Accountability in Government Transparency—the Mechanisms: Open Government and Accountability by Rober t G. Rober t G. Access to information also deters official misconduct by reminding public of their accountability. later the information.” Today. captured the importance of this relationship in his often warning. tragedy perhaps or both. The concept officials of transparency incorporates these same values underlying democratic accountability. Vaughn A number of American laws assure the rights of citizens to observe. In this article on open government and accountability. discusses how the concept of transparency incor porates these same values under lying democr atic accountability. values commonly referred to in the United States by the term “open government.
particularly those of personal privacy.discretion. In addition. At a minimum. which to government-held information and access the protection of personal information define the information policies of democratic rather than authoritarian regimes.and relevant guides and manuals cies. legislative and vants judicial of the federal government also branches seeks to give citizens sufficient information to judge whether the actions of those officials are likely influenced improperly by their own to be financial interests. Public documents financial by government officials and civil disclosure ser. The open government provisions noted above often conflict with other values. It promises that govern. it is Without difficult to believe that they will meaningfullypower of public limit the officials. Freedom other government provisions require public open government proceedings and access to government and information.and agencies. those standards must be cial known.” The best known and most effective of openthese government provisions is the federal of Information Act. Through this requirement. A discussion of the documents fed.can become a disseminator of ment information the values that now support vindicating open government provisions. Congress sought to avoid the application of “secret law” by federal officials guarantee that any person could and to examine the standards controlling the exercise of public power by those officials. 14 . final opinions ments resolving administrative proceedings conducted by agen. Vaughn commonly referred to in the United States by the term “open government. This conflict. If offi.statute.The electronic revolution has affected access to information. all 50 states have some form of a freedom of information statute that applies to some government and records. The federal Freedom of Information Act requires that some types of documents be made available without request and be placed in public reading rooms. Freedom of Information Laws Although the federal Freedom of Information Act is the best known of such provisions. however. captures the most eral salient of these state aspects laws. Robert G.in the executive. the rule of law requires access to the standards applied by government legal standards are to restrict officials. At the same time. knowledge of these standards. can also be seen as the way in however. it threaten personal privacy in ways can that undermine rather than support democratic institutions . Such documents include the rules and regulations of government depart. that directly affect members of the public.
These rights allow citizens to organize. the lack of information government policies at issue about the reduces the credibility of the speaker and diminishes of the right to speak. the exemptions authorize but do not require an agency to with. In allow the case of political speech. Congress also sought to ensure that individuals and groups would know of government rules and have the opportunity to com. The federal Freedom of Information Act contains nine exemptions to disclosure. All other government documents and records are considered to be public and are to made available upon request. a periodical printed by Register the Government Printing Office and widely avail-in libraries and by subscription. Persons requesting these documents need not give any reason why they wantdocuments or explain what use will be the made of them.supervision of such institutions. The be federal of Information Act creates the Freedom presumption that any person is entitled to government documents. tion or and containing geophysical and geological (9) information regarding oil wells. to advocate and to challenge the decisions of the government representing them. aboutorganization and procedures in order their to permit the public to understand how redress be sought within the may agencies.to withhold requested documents sions more rigorously than other types of administrative decisions. the release of which could reasonably be expected the risk of certain harms.commercial or financial information. through appeal to the courts. the discussing release would risk evasion of the law. The courts narrowly construe these tionsexemp. Political accountability rests upon the right of free expression and the right of free association. The courts review administrative deci. These documents: (1) properly classified in are for the interests of national defense or foreign policy. leged (5) protected by certain litigation privileges. in which an mus be claimed exemption t are national security information.upon them. Attorney Janet Reno have instructed General federal not to claim exemptions unless agencies they demonstrate that disclosure of the can protected documents would damage the public inter-The two principal examples of instances est).(President Bill Clinton and tions. (2) consisting of internal guides or directives enforcement strategies.about government decisions and mation the implications of these decisions.In the Administrative Procedure Act. and the release of documents which would invade personal privacy. Without the value infor. (7) compiled for law enforcement purposes. In most instances. federal 15 .documents falling under one of the hold exemp. For exam-documents obtained under the ple. Likewise. the impetus for association is also abridged.in or related to oversight of tained financial institutions by an agency charged with regula. (8) to create con. requires information about government policies and practices. legal accountability. for instance. (3) of which the disclosure of which is specifically prohibited by other laws. Agencies which propose ment new and regulations must publish them in rules the Federal . In able addi.agencies must publish information tion. (6) the release of which would constitute a clearly unwarranted invasion of personal privacy. (4) containing confidential or privi.of disclosure of the relevant in favor documents. These rights them to affect political change.
The justifications for open meetings onesare similar to those supporting access to government documents and records. the Privacy tion Act Act. which infringed upon the civil rights of U. In fact.http://firstgov. Other Open Government Laws A number of other open government laws.and.executive branch has improved eral Internet to federal agency websites.to be made electronically and often gory the response may be electronic as well. these exemptions are narrowly construed . will give access to federal the government websites). the the Ethics in Government Act. states have Committee provi-similar to these federal laws. which requires that the meetings of collegial bodies. the Electronic Freedom of Information Act improves significantly the mechanisms for access by emphasizing the role government as a disseminator of of information. exemptionssimilar to those contained in somewhat the Freedom of Information Act.The law assumes. see in future. paradoxically. which Public rooms are to become “virtual reading reading where the information available in rooms” them is accessible to anyone with a computer and a modem. Federal Advisory Committee Act.S. Increasingly. of Information Act. citizens.S. also pro. These other duct provi. applicable to the federal government.of government officials. Most importantly. some agencies permit requests for documents and records not falling in this cate. the exception of the Federal With Advisory Act.include the Sunshine in Government sions Act.gov.” requested to be of interest to other or likely potential requesters. In addition.Freedom of Information Act have fueled a num. (For access exam.access to documents regarding “hot tronic top. the Whistleblower Protec. the federal Sunshine in Government Act and similar state laws draw their names from a famous 16 . Many government documents and databases are available on the Internet.ways to understand and evaluate the vide con. most U. they or records are available electronically from a federal agency. subject to able. that the deliberations of the groups of individuals responsiblecollegial bodies are subject to for these public As with the federal Freedom scrutiny. The electronic revolution promises greateraccess citizen to government-held information and an enhanced role for the government as a disseminator of information through the Electronic Freedom of Information Act of 1996. Agencies are required to provide elec.documents which are commonly ics. The public must bers.successful challenges to the conduct ber of of government officials. such as commis.boards containing two or more sions and mem-be held in public. be given notice of these meetings published in the Federal and transcripts or other Registerdeliberations must also be made records of the avail. No longer must certain documents be specifically requested. the fed. The Sunshine in Government Act is openan meetings law. Indeed. an entry site that ple. seeks to fulfill these promises. sions the Sunshine in Government Act and the public disclosure provisions of the Ethics financial in Government Act relied upon examples found in state law.
it also guarantees the right to use democratic proce. Proceedings of other branches also are subject to the public observation. waste a gross of funds. The courts enforce these rights to access and amendment. a significant role in government policymaking. their accountability requires knowledge of their activities . This federal employees who disclose information regarding conduct that the employees official reasonably believe is a violation of law. protection other of whistleblowers helps to ensure that persons have the information necessary to make mean. or a specific and substantial danger to public health and safety. In the Register addition.quote by Supreme Court Justice Louis Brandeis that “sunlight is said to be the best of disinfectants. as important whethe the n is available is as infor.supporting those rulings.to change government action and dures policy. r Protection whistleblow.documents ment and records. they provide information at a time when a meaningful possible. These committees are advisory but used by the government in formulating official standards and procedures.to include public access to rulings als and orders disposing of litigation and to the docu.and records. these records permits the Access to individual 17 . provides access to government docu. the rationale of open lawsgovernment to the Whistleblower applies Protection act protects from retaliation Act. Like open government laws. A combination of constitutional law provisions provide that and common crimi. are retrievable by some identifying which particular.of mation is available. an abuse of authority. Whistleblower protections supplement freedom of information laws by assuring access to important information before persons would other. Protection of whistleblowers vindicates rightthe of free Whe information expression.use of the rights of free expression ingful and association. these and in some circumstances may seek records a correction or amendment of them.both the availability of ers increases information and its timeliness.as boards or commissions. the such Federal Advisory Committee Act regulates advisory committees containing private citizens. most hearings relevant and many committee deliberations also are open. Under rules of procedure.civil trials are open to the public. A principal method of regulation is provision for open meetings with the notice published in advance in Federal . activities and decisions of such Because these committees can play bodies.be aware of the need to request wise govern. the Federal Advisory Committee Act requires access to information regarding the membership. Sessions of ments the House and Senate are open to the public. The Privacy Act. such as a name or Social Security num-A person has the right to review ber. As the Sunshine in Government Act applies to the deliberations of collegial bodies. ” The federal open meeting law applies to the federal executive branch. rule or regulation. gross mismanagement. Similarly. nal and Many have extended the principle of open courts tri. Because whistleblowers are able to disclose hidden information and to shatter coverups of misconduct. despite the connotations of its title. The right of free response is expression does not simply protect criticism. A person may use the act ments to gain review of records concerning that person. rights that are the foundations of political accountability.
is not generated by the government ments but rather provided to the government by third per. Also included are receipt of in more gifts the reporting of assets and liabilities.its obligations under that act to filled ensure that such records are accurate. consider front the federal Freedom of Information Act. uses and disseminates such records.this conflict. file financial ing information. must be reported detail. information generated by sons. Access and Privacy Although public financial disclosure laws starkly illustrate the conflict between access and privacy. which is made available to the public.civil servants. Public disclosure of the financial interests of govern. This exemption protects privacy but strikes a bal. including highrank.sources including dividends. such as those of assets. other forms of income.to evaluate whether the government has ful. relevant and complete. which need only be and reported within broad ranges of value. interest. The Freedom of Information Act addresses the conflict between access and privacy by authorizing the withholding of documents. a made significant amount of personal financial informa. The ease of access provided by the Internet and the role of government as a disseminator of information may increase the like- 18 . including honoraria. timely. allowing ance an examination of the operations of government. and The provisions of the law are complicated and some disclosures.in favor of access to materials. federal judges members and certain executive officials. The electronic revolution can be seen as threatening the accommodation between access and privacy. also are within broad ranges of value. the government may concern the activities or characteristics of individuals.officials makes a powerful ment statement the accountability of public regarding employ. the release of which would constitute a clearly unwarranted invasion of personal privacy. maintains. The act also regulates how an agency acquires.available to the tion is public. Because of the relationship between the Freedom of Information Act and the Privacy most authorities believe that Act. federal officials lack discretion to release documents under falling the privacy exemption. Much of information contained in government the docu. it is likely that government documents and records many will contain substantial amounts of information the personal privacy of implicating individuals. Individual citizens can examine these reports to ensuregovernment officials do not have that conflicts of interest between their duties to the public and their personal financial interests. ous rent capital gains. Still. For example. information the privacy exemption to falling under the Freedom of Information Act also falls under the protections of the Privacy Act. Included financial reports are income from in such vari.the citizens whom they ees to serve. The Ethics in Government Act that requires of Congress. protects. all open government statutes con. exemption requires that since the disclosure to a clearly unwarranted invasion must lead of privacy. Thus. Thus.In addition. Congress justified these invasions of privacy on the need to reassure the public of the integrity of high government officials.
In contrast.The protection of personal privacy ability. public disclosure of the membership lists of the National Association for the Advancement of Colored People (NAACP) would have discour-affiliation with that group and aged undermined free association. Privacy and Freedom. he defines democracy and authoritarianism in terms of information policy. Vo l . Resolution. The protection of personal privacy also nurtures the right of free association. may be unattain-the conflict is seen as the able if choice between incommensurate values. 2 . I IP El ec tro n ic J ou rn als . democratic governments are marked by signifi-restrictions on the ability of cant government to acquire information about its citizens and by ready access by citizens to information about the activities of government. Rather than being inexorably in conflict. access and vacypriare both important to democratic account. A ugust 2 00 0 19 .on the ability of citizens to obtain tations information about the government. For example. From another perspective. however. 5 . Indeed. Alan Westin emphasizes the relationship between access and privacy in democratic governments. which is one of the right of the foundations of political accountability. Some assert that the Electronic Freedom critics of Information Act reduces the legal and practical protections for privacy. In his landmark book. Is su es o f Dem oc r ac y. The statutory resolution of the conflict between privacy and access a careful assessment of the scope requires of privacy protection and the justifications for access.lihood of violations of personal privacy. access and privacy are both intertwined with democratic accountability. No . during the civil rights movement in the southern United States during the 1960s. Authoritarian governments are identified by ready government access to information about the activities of citizens and by extensive limi. gives the individual the choice whether to speak and to speak in different places and at how different thus supports the right of free times and expression.
That information will also be used to more effectively manage the agencies as well. agencies are mandated to develop multi-year strategic plans. For example.Government Performance and Results Act (GPRA) The Government Performance and Results Act of 1993 is a major piece of legislation designed to increase accountability in government by measuring results—the results of programs and services provided by all federal government agencies and departments. 2000. service quality and customer satisfaction.congressional decision-making will improve because more objective information on the relative effectiveness and efficiency of federal programs and spending will be available. But it is hoped that as a result of GPRA. does a program provided by an agency involved in safeguarding food safety actually increase the safety of food? If so. It was intended to improve program effectiveness by promoting a new focus on results. in what ways and by how much? And what is the value of the improvement relative to the cost of the program? This is the kind of practical measurement intended by GPRA . The Government Accounting Office (GAO) will provide assessments of all the performance plans of both Cabinet departments as well as independent agencies. 20 . Under the act. The first agency performance reports under the act were required by March 31. annual performance plans and annual performance reports. So it is too soon to determine how effective they have been.
so to say. Ethics and Democracy. element in he adds: “In America there is no limit to freedom of association for political ends. just as journalism became more investi. the more convinced am effects I that. professor of American Studies and director. In this essay on some American “watchdogs” —the press and NGOs—Rober t Schmuhl.” Since the 1960s ation for and 1970s. freedom of the press is the principal and. analysis the author writes: “The more I observe the main of a free press.” From his travels and acute observations.Accountability in Government Government Accountability and External Watchdogs by Robert Schmuhl IN DEMOCRACY Outside and independent observer s are critical to any society seeking accountability in gover nment. Tocqueville easily recognized the connections free press” and “freedom of between “a associ. 21 . justifiably the most penetrating and considered enduring of the United States ever written. examines past events and looks at recent developments that enable citizens as never before to monitor their government.vis-a-vis government. in the modern world. Gallivan Program in Jour nalism. the constitutivefreedom. AMERIC .” A few sentences later.political ends. Univer sity of Notre Dame.Alexi IN A de Tocqueville’s 19th-century sstudy. John W. citizen groups gatory and nongovernment organizations have multiplied across America to serve as watchdogs and crit-of the conduct of public business and ics of those either elected or appointed to do that business .
public education. What makes the Center for Public Integrity distinctive is its emphasis on investigative reporting and its relationship with established journalistic institutions. the dangers of under-regulated pesticides and the decline in privacy as technology becomes more sophisticated. its analysis of campaign contributions of Indiana’s state general to members assembly 22 . However. Public Citizen and the Center for Public Integrity have public activity — or inactivity — made their of attention and reason for being. to the federal. Public Awareness Organizations as Watchdogs Common Cause.government and focuses on tors corporate accountability. and for establishing disclosure requirements for lobbyists to influence legislation or trying government agencies . the Center for other Public Integrity.000 members (as well as staff of 50 in Washington). focus commu.” Committed to open and ethical politics and governing. combines the methodologies of political science and the techniques of investigative reporting in researching and releasing reports and book-length studies topics as questionable contributions on such in presidential and congressional campaigns.their research findings to members nicating of their organizations and through the news media citizenry at large.” also moni. the watchdog group Public Citizen has had a more encompassing agenda. local governments are now subject state and to monitoring on a continuing basis as never before . “Congress Watch. his co-workers were instrumental Nader and in legislation creating the Occupational the Safety and Health Administration OSH ) and the A Safety ( Consumer Product Commission. As a result. Public Citizen focuses more Nader on American consumer concerns — notably safe and drugs. for ending outside gifts lucrative speaking fees for members and of Congress from special interests. uses the a slogan “Holding Power Accountable. While Common Cause focuses on and political government reform. Founded by consumer activist Ralph in 1971. and research and media outreach. which was founded in 1970 and now has over 250. for creating “sunshine” laws to insure public business is conducted in public and not behind closed doors. campaign finance reform. For instance.Robert Schmuhl Groups such as Common Cause. one arm of Public Citizen. the organization has helped initiate legislation for reforming the funding of presidential campaigns. Pursuing a somewhat different fromapproachgroups. professional medical care food and energy conservation. founded in 1990.
a bring. From that comes individ. The Press as Watchdog Near the end of his life in 1836. They cannot govern by episodes. James Madison a letter. news institutions and the the Center their common objectives. As ing the respected American columnist and author Lippmann once argued. incidents and eruptions.” Maintaining “a steady light” with which to see the strengths and weaknesses of the different levels of government is the first step in responsible citizenship.assistance for the news media ed research to in their work.collective action that seeks to correct ual and or improve aspects of politics and governance.into vision.could well be a sense of quence information a personal quandary about the overload or most appropriate direction to take. sorting through the volume of daily information poses a serious.episode and then another out of ing one dark. In these and other cases. new media options less attention to traditional news result in out. constantly multiplying broadcast. an independent watchdog organization is providing sophisticat. it’s no longer print and possible people to share a common body to expect of information about civic life. At a time when some use news institutions claim they cannot afford expensive investigations of complicated subjects. Constitution have envisioned was a world could never with an array of sources of available such informa. for example. And multiplicity of available outlets means the mas. But such work demands perspective and recognition of the limitations that exist in rely-on the media alone for guidance. potentially debilitating prob. cyber sources. Although access to political and mentgovern. Although media usage has by no means declined in recent years. “The press is Walter no substitute for institutions. society It only when they work by a steady light of is their that the press.and reports is now relatively news easy. one tering conse.information for the necessary ment background to make decisions. 23 . a situation intelligible enough for a reveals popular decision. “A people who mean to be wrote in their governors must arm themselves with own the power which knowledge gives. the Center for Public Integrity helps defray the costly background inquiry. The media lem present so many messages that most people are forced civic information in a deliberate. with achieve public awareness benefitting from the joint effort. with the findings appearing in major media outlets. ultimately In balance.S.forcing Americans who want to lets.myriad data.resulted in a detailed series of articles in 1996 Indianapolis in the and a week-long Star local report on television.acquiring the knowledge that leads tion that to power takes more effort today than ever before. when it is turned upon own them. to seek active With way. Men cannot do the work of ness the world by this light alone. Otherwise. be informed about public affairs to take greater personal initiative to learn what’s happening.for the average citizen. citizens now must go to Concerned special sources featuring political and media govern. about voting or working to change or affect public policy.” What the fourth president and father of the U. It is like the beam of searchlight that moves restlessly about.
increasingly difficult. complete with many more broadcast and Internet sources. Each outlet requires a con. Amendment to the Constitution The First — insuring freedom of religion. assembly and petitioning “the Government for a redress of grievances” — is both a shield and a sword for journalists in covering public affairs. tension between government on all levels and the news media is inevitable. interpre. American news coverage of government has assumed a more pronounced adversarial stance.Especially since the 1960s and 1970s. is the new environment for news.messages now circulate in the peting coverage stories that forming a reasoned of major view. press. and publication of press the . the government’s effort to restrain the was not allowed.kind is a more recent phenomenon. Called the “Pentagon Papers Case” (officially Times v.S.the contemporary relationship standing between government and the news media. U. aside from the aggressive reporting style of Woodward and Bernstein. it was the first time New York ). sec. The Vietnam War and the Watergate scandal lowered citizen confidence and trust not only in government’s work. investigative coverage and analysis. For centuries kinds we been familiar with the first kind — have an ignorance that covered most of the world like a dark cloud. with government officials trying to make sure their rationale for public policies and actions receives attention. giving rise changed to probing. Information does not always lead to knowledge. ond one which presents itself in the form of a paradox.” In this new information environment.supply of new messages. and knowledge is rarely enough to produce wisdom. where so much information abounds that the mind doesn’t know what to believe. federal government the tried to pre-censor major outlets — New news York and the the Washington — Times for endangering Post national security . How well the different institutions role is widely debated both fulfill that inside and outside journalism. when and the the administration of President Richard Nixon tried to halt the publication of documents about American involvement in the Vietnam War. is noted television journalist Ted Koppel ABC remarked 24 in a recent lecture: “There are at least two of extreme ignorance. the coverage of Watergate and Richard administration Washington Nixon’s by Post reporters Bob Woodward and Carl Bernsteinthe ethos of journalism. leading to stant more opportunities for the news media to serve as watchdog. During the past three decades. One significant battle between the mentgovern. speech. government offices and agencies at every level have become more sensitive to the public’s perception of their work.press occurred in 1971. but the facts of the new and environment are critical in ethos under.based on accurate facts and fair point. In particular. As the tation. However. by a 6–3 vote of the Supreme Court. those two events the also forced the media and the public to question the government and its officials whether were truthful and thus made journalists more aggres. This second form of ignorance exists in a world of electronic anarchy. an ignorance that exists in a vacu-where no information is available.their reporting of public affairs and sive in government administrators at every level. So many com. as news outlets have proliferated and become more aggressive. What’s different today. The um.
2 .and multi-faceted activities. Suspicion of governmen. I IP El ec tro n ic J ou rn als . public interest cantly.or. By engaging in their they day. more generally. Vo l . groups and citizens — either acting alone or collec. but later as president. state and local levels. Unofficially. yet bodies signifi. 5 .Indeed. This landmark case. Thomas noted that “the artillery of the Jefferson pressbeen leveled against us.— monitor what’s happening in tively government and seek changes or corrections when seem warranted.its licentiousness could devise or soever dare. A ugust 2 00 0 25 . providing “checks and balances” on public and officials. the Founding Fathers teristic. ” Embedded in Jefferson’s differing views the of press are several lessons with continuing for anyone attempting to relevance understand the relationship between government and jour. But Jefferson’s complaints.encroaching on individual tal power freedoms has always been a defining American charac. Early on. government and nalism out. estab.different branches of government lished — executive. legislative and judicial — that proliferated at the national. The Supreme Court’s affirmation of the First Amendment three decades ago continues to embolden the press today. Jefferson was neither efforts the nor last occupant of the White House first to complain vociferously about press mistreatment his of presidency.the news media.” Yet earlier in his career. Jefferson had proclaimed that in choosing “government without newspapers or newspapers without government. decided as the Vietnam War raged on and involving the president of the United States and leading news organizations. Jefferson recognized the value of newspapers for citizen self-governance and freedom. No . became two an influential victory for journalism in the pressgovernment relationship. hesitate for a moment to prefer I should not the latter.watchdogs seeking accountability in side the conduct of public affairs. are what fuel the fires for keeping the public well informed.Pentagon Papers proceeded. charged with has what. along with those of government officials throughout the ages. he found the reportage and criticism detrimental to his own at governing. Is su es o f Dem oc r ac y. An Ever-Present Watchdog In his second inaugural address. the to-day workthese “watchdogs” — in holding of government and faithful to the nation’s accountable ideals — help keep the United States on an unending a more representative and path to purposeful democracy .
and also cast unani. nonpartisan public interest group that defends the r ights of employees who “blow the whistle” on illegal or potentially har mful activities of government agencies.” And called that to explain why the votes for the law helps were unanimously in 1989. Contributing Editor David Pitts talked with Thomas Devine. The law betrayals of protects disclosures regarding illegality. let alone twice. 26 .strengthened in 1994. a nonprofit. mously Congress seldom any significant law unanimously passes once. Below is the edited transcript. gross mismanagement or substantial and specific danger to public health or safety.bipartisan imous. leading sponsors of the In fact. legal director for the Government Accountability Project (GAP). DEVINE:Firstthat implements Amendment free speech protection for government workers challenging the public trust. gross waste. What is the Whistle MR. PITTS: Act Blower Protection of 1989. Congress passed this law as part of a unan. legislation that it more properly could have explained been the “Taxpayer Protection Act. good-government mandate. and why was it passed? It’s a government statute MR.Accountability in Government The Whistleblower Protection Act Recently. abuse of authority.
PITTS: The 1994 amendments MR.the point of the Whistleblower Protection Act apply the First Amendment where —to it counts most for government employees who the freedom to act as public want servants. employees of MR. DEVINE: law match the scope of the civil service system and due process rules which have existed the since1880s for federal employees with the the equiv. is the legal boundary at the But that moment. all of those workers should be added to the scope of coverage under the Whistleblower Protection Act. We routinely rely on Congress to flesh out those principles. PITTS: categories excluded ? The boundaries for the MR. But in my opinion. constitutional rights get Almost all more detailed rules for implementation through MR.PITTS Are there any categories of federal :workers that are excluded from the law? Yes. have suchPITTS: when there is a First Amendment a law to the Constitution? The First Amendment. PITTS: Thomas Devine in 1994? MR.than as bureaucrats limited to rather following orders. Why was it necessary to MR. is a green light for free speech matters affecting the government. is available to allwhich citizens. Constitutional rights passed normally are broad-brush statements of principle. DEVINE: laws by Congress. DEVINE: expanded the scope of coverage for the law and overturned hostile court precedents that had interpreted the legislation that threatened to cancel its viability. MR. And that was How effective has the act been passage and succeeding 27 . DEVINE: or intelligence agencies the Federal Bureau of Investigation (FBI) are outside the How was strengthened the law protections of the Whistleblower Protection Act. flesh out those values through creating more tangible boundaries statutes that citizens can rely on and practice. as are congressional and judicial staff. Why were those MR. alent Employees at the judicial and legislative branches traditionally have been excluded from Civil Service Commission rules and regulations. The law targets free speech rights for federal employees. since its amendment? MR.of tenure in the career service. But it also allows private or government contractors to file citizens disclosures challenging bureaucratic misconduct. because their service duties are just as strong or public even compelling than staff at federal more agencies.
Disclosures by whistleblowers at a plant in Ohio. which conducts informal investigations into alleged merit system violations.a solid commitment to the merit strated system principles underlying this law and has applied an evenhanded manner. PITTS: Act the kind Protection of legislation that could work equally well in other countries? Without question. Congress is eral considering legislation to again overturn indefensible precedents by that court and to expand judi.review so that these scenarios don’t cial recur. led to cancellation of a nuclear facility that was almost completed. DEVINE: difference to make a through the Whistleblower Protection Act was the challenge of misconduct disclosures of failure by the involving Nuclear Regulatory Commission to enforce public safe. The chief chief firedwhistleblower. had the police chief lost his job and was forced to plead to a series of felonies for his guilty crimes. which them in has earned respect from all parties. At the Government Accountability that federal workers are Project we say “committing” the truth when they blow the whistle so frequently. Those are two had exam. Is the Whistleblower MR. 28 . And these heel of free speech statutes are right-to-know laws not for the public. DEVINE: Another example would be defending employees against retaliation. they’re treated as if because. A police officer Veterans Administration medical at a hospital challenged sadistic.hearings under the law. an initial whistleblowing sparked by disclosure. racist brutality by the local of police against veterans. Can you give us one or two high MR. for example. Eventually. the law is probably facing mostits severe challenge since its passage due to relentlessly hostile judicial interpretations by a court which has a monopoly of review: the Fed. whistleblower tion protec.violated. PITTS: profile examples of the act’s success? One example of helping MR. So those are examples of how this law allows employees to “commit the truth” and survive. The law also is administered by the Office of Special Counsel.Circuit Court of Appeals.requirements at facilities under ty construction. because nuclear safety laws had been systemat. they committed a crime.The act has probably never been more effective in terms of support at the administrative level. It has istrative MR. ically After intensive investigations. Unfortunately. which adjudicates admin. converted the plant to a coalthe owners fired facility that now is operating safely. DEVINE: blowers are the Whistle. In a very real sense.factor that’s the human Achilles bureaucratic corruption.the lifeblood for managers laws are to receive early warnings of problems and have a fighting chance of limiting the damage before there’s an avoidable disaster. but also for legislators only and managers of agencies responsible for the keeping societies functional and defending their markets .why people take these risks and ples of how can be worth they it. demon. but he asserted his rights the and his termination overturned. MR.
in 1997 we published the Whistleblower’s Survival Guide: Courage Without .to defend themselves against ing retaliation. which is a practical Martyrdomemployees that summarizes their law guide for legal options. to protect employees in the nuclear and airlines industries that we have championed. And the Inter-American Convention Against Corruption requires member of the Organization of American nations States to prepare to adapt whistleblower (OAS) protection legislation as a shield for those bearing witness against corruption. And we’re starting a pilot program in five Central American nations this fall for that purpose.The Council of Europe.and representing individuals who are seling try. state and local level. among others . For example. Law Revie w I would like to go back for just a minute to whether whistleblower protection can work and be a significant factor internationally. The fourth leg of GAP’s mission is publishing works on whistleblower rights: what employees can expect when they stick their out and how they can make a necks difference. of cases that we handle. serve as DEVINE: organization’s our expert on MR. There is no question nations around the world are realizing that employees who bear wit. normal law firm without the just like a profit factor . PITTS: The third cornerstone of our organization’s work is leading efforts to create and strengthen whistleblower legislation at the federal. It comprises 20 years of lessons at GAP.on behalf ness indispensable.protection laws in OAS member blower states. 29 . Congress has passed laws. nonpartisan. What is your role at GAP and what is the organization’s role? As the legal director. so that others may be learned sparedof the pain of pioneers who worked some with our organization. We pursue our mission through coun. for example. is requiring its nations to pass whistleblower protection laws as part of their convention against corruption. Our publications have ranged from books to scholarly articles. for example. public interest group that defends the rights of witnesses who defend the public. I MR. Our second role is conducting tionsinvestigato help whistleblowers make a difference by exposing coverups. We’re a nonprofit. GAP has existed since 1977. GAP was selected by OAS to help and develop advocate implementation of model whistle. such as law reviews. Last year. we published the primary article explaining all the nooks and crannies in the Whistleblower Protection Act for the American Bar Association in Administrative their . of the public are whistleblower lead our campaigns to rights and strengthen as well as supervise the docket those laws. seeking accountability problems exposed by those and correcting who exercise free speech rights.
The second thing that we’re focused on is meeting with representatives of multinational ranging from the World Bank organizations to groups such as the OAS seeking a broader man-for the principle of whistleblower rights date — both outside and within those organizations. This is the drive for accountability fromranging the integrity of markets to respect for civil society. We’ve received requests for fromassistance Argentina.” after those who ring church bells when danger threatens a commu. no matter what the ideology. Whistleblowers are an indispensable cornerstone for viable checks and balances to institutionalize accountability and to establish of credibility for the goals of any hope estab. South Korea.for whatever motives. In the international arena. peo.civil society. could The common theme is that these are ple.private sector leaders who are ment or interest-planting the seed in their ed in nations. exercise who free speech rights to warn the public about threats to society.In the Netherlands. We believe that retaliation against who those challenge corruption on its face is a humanviolation. D. The first is providing expert technical assistance to govern. we’re making presentations in Mexico this September to show government how to act on its anticorruption mandate. In as lighthouse keepers. And that leads me back blower to answering your question about the nature of our work. Canada. Further. even in countries with patterns of abuse. whether it’s scientific. Freedom of speech lishing has 30 . true to that insight. They keep any society ical from becoming stagnant. Great Britain. Russia. has. whose warnings are akin to beacons exposing rocks and danger spots that sink ships. It is one of the most powerful phenomena that exists today.a human right in tribunals such as tion as the Inter-American Commission on Human Rights and the European Court of Human Rights.some nations they’ve been known nity. and numerous delegations sponsored by the State Department that have visited Washington. traditional defenses rights of human rights will be strongly reinforced if there viable protections for those who are challenge and abuse of violations power. Finally. And the benefits of whistleblowing in no sense are limited to any particular culture or of political system. Australia. For putting up regional globes that track the existence of whistleblower laws and new proposals. in the last year. Our organization. The third initiative has been to conduct ongoing legal research and learn the full extent nature of whistleblower rights and internation-example. we’re looking for test cases to develop a precedence of whistleblower protec.C. South Africa. In a follow-up to one of those visits. And they are the pioneers of change. Information is type an essential prerequisite to responsibly exercise authority.are employees who challenge the These conventional wisdom. whistleblowers are called “bell ringers. been expanding our work from domestic advocacy to international whistle-protection. we also four have cornerstones of our efforts. polit-or business. on our website we’re ally. Slovakia.
tional But we seldom go beyond for cost or a portion of the time that charging we representing whistleblowers. 5. DEVINE: foundation grants by from a wide variety of small foundations. DEVINE: Thank you. also. And if anybody overseas wanted to get in contact with you for the services and publications that you refer to. has to And to date. a your by? MR. what would be the best way? Through our web site MR. And it’s one of the principles which defines a genuine democracy. We have spend a modest direct-mail fund-raising program. Mr. GAP has been very encouraged that international leaders are taking that premise asgiven. Who is organization funded We’re primarily funded MR. I ss ues o f Dem oc r ac y. MR. This value be at the front lines of globalization. PITTS: Devine. DEVINE: at www. We also accept attorneyfamily fee awards after prevailing in test cases or conven-litigation. A ugust 20 00 31 . I IP E lec t ro ni c Jo u rn als . 2 .or g Thank you very much. Vo l . MR. PITTS: MR. PITTS: And a final question.whistleblower.changed the course of history repeatedly in the United States. No .
U. In this essay on how the federal government regulates itself. Constitution. detect and remedy negligent conduct by gover nment agencies and officials that is not in the public interest.S. the United States government at the feder al (national) level has a highly developed structure of laws and regulations designed to prevent.and Civil Wars. The bedrock foundation of all U. Refinements of the basic components have historically occurred likely continue to occur in response and will to scandals and political crises. Government Integrity Systems and Ethics by Jane S. Office of Government Ethics. In the late 18th century.Accountability in Government U. the legal framework supporting government the United States arose from integrity in events involving great national tension—our Revolu.S.S. government is established by and for the people 32 . The United States Constitution the phrase “We the People…” begins with signifying from the very outset that the U. deputy director for government relations and special projects. and presidential tionary assassinations and resignations. they The Founders felt that concentrating too much in the hands of any one governing body power was dangerous. Ley MANY OF THE BASIC components of Today.S. mentgovernself-regulation is the U. after the Revolutionary War. The overarching purpose of this legal framewor k is to promote institutional integrity as well as the per sonal integrity of each federal employee.S. the drafters of the Constitution were greatly influenced by their perception that the European systems of government with whichwere most familiar were corrupt. explores the system and how it has evolved over time. Ley. Jane S.
33 . can programsensure that government monies are to help being and accounted for in a proper spent fashion. And. acting on behalf of the collective will. of “checks and balances” among their powers. public system for issuing competitive. That is government employees are often referred why to the United States as “public servants” in and.for administrative activities such as dures rulemaking and enforcement of regulations and to conduct those activities in a public forum. For example. it has standards and procedures for spending government money appropriated by the Congress. all civil and criminal litigation in the federal courts must follow standardized published rules. more generally. when as “public trustees.carried out in accordance with es not standardprocedures or not carried out in written the proper public forum may be challenged by the public in the federal courts and invalidated. In addition. government contracts. Institutional Integrity Overlaying this constitutional separation of powers are laws and regulations that impose procedural requirements on all general agencies and courts of the government to ensure that government actions are conducted in a fair and consistent manner and in the light of the public eye. Constitution separates the federal government into three distinct branches (judi-legislative and executive) with a system cial.processes is a key component of lic government selfregulation.” The U.and Jane Ley S. ers by While this diffusion of power may be inefficient in some ways. the Founders felt strongly that this the best way to ensure that “We the was People” not be subjected to a single would tyrannical power within the government nor would the government be dominated by a small tyrannical the people serving their own group of special interests .S. It also allows for the retention of significant pow. and must be accountable to its citizens. Congress also enacted a Freedom of Information Act that allows broad public access to govern-records and information. during the middle half of 20th the century. Agency ment process.the states within a federal system. the General Accounting audit and evaluate agency Office. Finally. the government also developed a standardized. This consistency and transparency of pub. through a series of statutes. Congress enacted a series of laws — including the Administrative Procedures Act the Government in the Sunshine Act and — require agencies to follow standard that proce. An arm of the Congress.
but funds having supported the next winning presidential Swartwout was reappointed. As in that each president was elected.public indignation to force a cient significant change. These restrictions are popularly referred to by the name to the first such comprehensive law. During that term he disappeared to Europe with over $1. continues to prohibit Act. activities 34 . Initial prohibitions were quite restrictive. in the 1830s Swartwout was appointed Collector Samuel of Port of New York. Reform efforts but were unsuccessful in raising began suffi. the assassination of Presi. but an enormous portion of the entire fed.James Garfield in 1881 by an dent individualthe president owed him a specific who felt job was the catalyst for this reform. Office of Personnel Management (OPM) and the Merit Systems Protection Board are based upon that foundation and now include standard adminis. given the Hatch Act. The Hatch however.Individual Integrity The activities of any government. federal level as without a key component in any successful program designed to protect against corruption.000 short. promotions on the basis of merit and a fair system of job and pay classification for civil service.an examination for fitness and lished competency.procedures trative for addressing incompetence and misconduct. are carried out by individuals. candidate. the Port were found to be $210. and those willing to pay did so expecting to “reimburse” themselves in other ways from the public treasury.S.S. more recent amendments to the Hatch Act for some personal participation in allow political activities by most employees. During his first term. This grossly corrupted federal service became a national scandal. Ultimately.000 of government money. thus employee qualifications and conduct also have been an evolving area of regulation. Early in U. These restrictions have a twofold purpose: to protect employees from requests from office seekers for assistance in their elec.250. In 1883. he brought with him individuals who had supported his election and then expected to be given government who jobs. and individual conduct job was not closely controlled. a government job was based upon a holding socalled “spoils” system.treasury in the early 19th eral century. For example. Political Activities of Employee s Restrictions limiting the political activities of government employees also began to be enacted during the mid-20th century. The requirements systems administered today by the U. history.S. The public its demand for reform during the made congressional elections in 1882. A tidy sum today. Jobs in particular demand were that allowed the holder to collect those funds the public.and to protect the public from having tions government employees use the authority and resources of their offices to help particular candidates. however. A merit-based civil service fair and adequate salary is now paid a acceptedquestion at the U. Integrity or competence from was of primary importance in the selection not of these employees. the new Congress enacted the first comprehensive civil service law — the Pendleton Act — that estab. Individuals with influence in a new president’s administration would sell their ability to secure others for a percentage of their jobs for salary.
it is removal from service or. on duty. however. Currently. This new approach was based on belief that the public’s trust in the a govern. renewed interest in public service as a respected profession.circumstances. officials As particular scandals arose. ing These gave rise to a series of criminal scandals laws designed to prohibit government officials from personally profiting by their involvement in government decisions and processes.the public or to those in positions doing to of authority. The offer and acceptance by public of bribes was an early prohibition. Conflicts of Interest and Ethics The personal conflicts of interest and “ethics” of government officers and employees were for than a century and a half dealt more with exclusively by criminal statutes and almost proceedings. gener-in part by the election rhetoric of ated President Kennedy. under lating cer.such as using official authority or influence to interfere with an election. the United States Office of Special Counsel (OSC). additional activities prohibited.the employee’s identity. and the penalty for vio. the federal statutes were redrafted to use criminal common were codified in a single location terms and in laws of the United States. OSC provides a secure channel through which an employee may provide evidence of a violation of any law. The the Kennedy administration also began a project of estab. soliciting or accepting political contributions on behalf of a candi-engaging in political activity while date. First. began to shift the John F. a suspension without tain pay not less than 30 for days.within an organization who reveals son wrong. abuse of authority or waste substantial and specific danger to public health and safety fear of retaliation and without without disclo.The term “whistleblower” refers to a work. rule regulation. on federal premises or in a government soliciting or discouraging the uniform. Whistleblower Protection The Office of Special Counsel is also responsi-the 1989 Whistleblower Protection ble for Act. a newer component of the self-regulatory frame. emphasis from simply criminal prohibitions to more aspirational standards.activity of any person who has ical business before the employee’s agency. or polit. Under this law. this is enforced by a small agency within law the executive branch. Thus the 35 .an administrative (non-criminal) code lishing of conduct for executive branch officials that addressed not only actual conflicts of interest but activities that gave rise to appearanc of the e such conflicts. or gross of funds. gross mismanagement. In the early 1960s.damaged whenever it appeared that ment was a conflict of interest had occurred. OSC’s authority also extends to protecting whistleblowers from retaliation they have made these because protected disclosures . The basic prohibitions of these statutes remain today. Early scandals became involved making unfounded claims against officials the government treasury or personally profiting during the Civil War from contracts for goods that never arrived or were defective (thus caus-additional deaths and casualties). without sure of that person’s consent. per.
In 1965. mined In part. Even though elected.carried out by other agencies ment are within the branch. at the same time the sary.President Richard Nixon severely tion of under. while enforceable.such as reprimand.the mere enforcement of laws tion that governing institutional and employee conduct were not enough. and the duct principles. For serious plaints misconduct. if necessary.advice with regard to those codes. In the mid 1970s. President Lyndon Johnson. (3) impeding government zation efficiency or economy. continuing the project after Kennedy ’s death.In 1978. Investigation and enforce. also had an aspirational dimension. InspectorAct was passed. counseling and education) and for establishing ethics policy for the entire executive branch.branch and has committees that ees of the pro. is not. and with regard to individual conduct. the congressional response was to create internal agency “watchdogs” known as inspectors general. a member of the House or Senate may be expelled by the rest of the members for misconduct. (4) losing complete independence or impartiality of action. Preventive measures were also neces. or create the appear. judges may be removed by the Senate impeachment and conviction through and 36 . the office Rather. It vide also an established procedure for hearing has com. Each now has a specific “ethics” committee made up of its own members and established its own rules of conduct has that supplement the criminal statutes. In general and this OG does not perform both the roles way. Executive Order 11222 setting forth issued six principles of conduct that were to be basic the bedrock of public service.” In the legislative branch of government the Constitution makes each chamber—the Senate or the House of Representatives— responsible for determining the qualifications of its own members. That Executive Order expressly stated the previously implied that an employee should avoid principle any action that might result in.giving preferential treatment to any (2) organi. receive complaints and. make sanction recommendations to their respective houses. is responsible for a prevention program (public financial disclosure. the activities with associated the impending impeachment and resigna. The judicial branch has established codes of conduct for federal judges and other employ.or person. expectations for official con. However. (5) making a government decision outside official channels. such as the agency inspectors the Department of Justice. These committees provide advice to members of Congress. Violations of these standards would not result imprisonment or fine. Congress passed General the Ethics in Government Act that created the Office of Government Ethics OG ).the public’s confidence in its leaders. an enforcement agency to be.against federal judges. suspension tive sanctions or dismissal. Thus. E of “counselor” and “cop.(1) using public office for private ance of gain. Unlike E ( many government agencies throughout the world that are tasked with dealing with conflicts of interest and OG was not intended E ethics. or (6) affecting adversely the confidence of the public in the integrity of the government. there was also a recogni.were set much higher.administrative code encompassed a far broader activities than that prohibited by range of the criminal code. but in in administra.
Such actions can include recusal [abstaining from decisions involving possible conflict of interest]. Criminal Conflicts of Interest In general. a spouse or child or certain types of organizations with which they have a fidu.from sharing in a claim against ment.to anticipate potential conflicts tunity between the employee’s financial interests and activities or her duties. continuing arrangements employers. Agencies can then and his counsel employees with regard to the measures they take in order to avoid actual must conflicts. They also are prohibited from accepting from private sources payment or a supplementation of salary as compensation for government services. former their offi. they been engaged in providing services for had a prior to government employment.and employees of the executive and cers legislative branches are restricted for certain periods after leaving government service of time from representing others to or before the government types of matters. sales with former and exchanges of certain assets. The U. Reviewing one the reports provides the government with an oppor. financial disclosure 37 . Finally.or employment relationship. for whether an official can be impartial. ing a annually termination of federal service.individuals in matters before the vate govern. may be imposed.positions ment held. for firsttime the names of their major clients if filers. other sanctions. but offenders fine and/or may be charged with civil also offenses. In general. purchases. In and at the this the public has an opportunity to judge way. liabilities. and the government. the criminal conflict of interest prohibit officers and employees statutes from all three branches from accepting bribes or gratuities. and. Executive branch officials are prohibited from acting in any government matter in which they. For less serious misconduct. divestiture.000 five years in jail. the reports can also a be for enforcement purposes if information used on report discloses a violation of some the statute individual filer is found to have or if the filed a false report. Financial disclosure by federal and officers employees provides the government with of its best prevention tools. Midfee level government officials in the executive branch more limited financial disclosure file a reporttheir employing agencies that is not with disclosed to the public. such as private or public reprimand or a change in the assignment of cases. Of course. The on certain criminal have a maximum penalty of a statutes $250. these reports require the disclosure of most assets and sources of income. These reports are required upon entry into federal service or when becom.S.candidate for such a position. has a ciary financial interest. Financial Disclosure High-level government officials of all three branches are required to file financial disclosure reports that are available upon request to anyone in the world. from acting as the representative of pri. itself has engaged in some conflict of interest or is being about his or her financial holdings truthful and obligations. resignation from private or employment or the establishment positions ofblind trust.prosecuted by the Department of Justice for criminal violations. fiduciary or employ. gifts.
such as the changing role and scope lenges. over and must continue to adapt to new time chal. is not designed to detect enrichment. using public office for private gain. the code is more stringent for the highest levels of employees. I IP El ec tro n ic J ou rn als . Codes of Conduct The range of activities covered by all three branches’ codes of conduct can include restric. it does not require illicit disclosure of net worth. 2 . misuse of government property and misuse of official time).the acceptance and solicitation of tions on gifts sources outside the government as well from as from other employees. fair and public procedures for carrying out the business of govern- ment and to promote individual employee through the establishment of fair. integrity consistent and enforceable standards of ethical It is a system that has evolved conduct. cial and misuse of position (i. misuse of nonpublic information. 5 . and when a career civil servant is involved. of government itself and the effect and sometimes stress of new technologies on government processes . This system is designed to promote institutional integrity through the establishment of consistent. seeking other employment. employment and other activities outside the government.e. Vo l . Conclusion Beginning with the Constitution itself. however. A ugust 2 00 0 38 .. conflicting financial interests. Is su es o f Dem oc r ac y. To the extent that appointees the standards are not the same. partiality in performing offi. those sanctions must be carried out using the standard civil service administrative procedures . No .system.duties. The executive branch code of conduct governs all career and political in the branch.in the executive branch for Penalties violating these standards range from reprimand to dismissal. the United States has developed an interdependent and regulations that promote system of laws and require self-regulation.
the day of the statewide presidential Florida primary. including Florida. where they are permitted. specific proposals that are either voted up or down. a case study in how ballot measures work. He went to the polls on for five March 14. In the 26 sures states. 2000 — the day of the statewide presidential primar y.More than 80 percent of those who posal. voters may cast ballots on local or statewide issues directly. and voted against the pro.” Lee County is one of thousands of communities in the United States where ballot mea. cast ballots in Lee County that day voted the same The proposed sales tax increase was way. is one of many places in the U. Contributing Editor David Pitts examines the issue that faced voters there. Ballot mea. Florida. he says. his.” JIM W OO . 39 . if needed. a booming area on the Southwest coast of Florida. “They should raise the money. Florida— A Case Study in Accountability by David Pitts residen D LONGTIME t of Lee County.” tory.are commonplace. where citizens may hold government directly accountable through ballot measures.Accountability in Government Lee County.are an example of what is known sures as “direct democracy” or “direct accountability. knew instantly how he would vote when he learned that the Board of Commissioners (the county executive) proposed a ballot measure seeking voter approval the sales tax from six to seven to raise percent years.The last ballot measure in Lee County was held on March 14. other in ways. as well as hold elected officials to account on their overall records. 2000.A Lee County.“I think most people here felt as I did.S.
Instead of a hike in sales tax. The Media Campaign Both supporters and opponents of the sales tax increase took their case to the local media to express their point of view to county residents. renters. “but none a sales that work as well. along with the majority of voters.projects.” He predicts a hike would in property taxes in the future to cover the short.needed funds and says a sales fall in tax increase would have been a fairer option since group—property owners.” says of Commerce of Southwest Florida. the dominant newspaper in . In Lee County. president of the Chamber ty. every visitors residents and would contribute. “But didn’t advocate it very strongly or they very well. cast his ballot against the sales tax increase. its opponents favored the raising fees on new development and impact the issuance of bonds to finance projects. Although some political scientists and constitutional scholars question the validity of ballot measures in a representative system of government. 40 Supporters of the plan called the proposed tax increase a necessary investment in the county’s future and the best way to raise the needed revenue. an expansion of the county jail. There were options other than tax increase to finance it. “But it wasn’t just business people who voted for it. headquartered in its largest city. he explains.” Tirey continues. “I voted for the sales tax increase because it was strategically important for this communi-Steve Tirey. The board proposed the one-cent increase to generate $310 million dollars over five years to split by the county and its cities for a be myri. including the building of ad of parks. But opponents said the financial burden should be placed squarely on developers who had driven the need for increased county services. infrastructure associated with private development is an issue affecting many communities in the United States and around the world. voters have a direct say on the issue.good planning. polls indicate that more than twothirdsvoters support of them. if neces-How to finance the costs of public sary. organized a group named Supporters “The . libraries. a the reporter who covered the story at the time for News the .Jim Wood. a longtime county resident. there is a need for ty has $200 million of new infrastructure immediately. hurricane shelters and roads.” he adds. who. The Stakes Involved in the Sales Tax Issue The proposal to increase Lee County’s sales tax an uphill battle that went downhill “was from start. People understood who the complex argumentsvoted for it too. Fort Myers.” according to Mike Hoyem.” Although “this involved coun.the Pres s county.
agrees. “It was an inappropriate use public funds for the IDA to of allocate of public money to support the tax $200. Gail Markham. says “I am absolutely convinced the tax increase was the best way to sales go.” he says. state election her offi. This follows ing illegal a complaint by a private citizen.” Markham agrees the effort was less than effective. according to government sources.” paign. A television advertising campaign that began six weeks before the election.1999. came But Griffin says he has filed a complaint with the Florida State Department of Ethics alleging that action by the IDA “violated the state’s the sun.have imposed a fine of $400 for cials distribut. “They just the Press conducted a bad campaign.campaign literature. which require that meetings shine where funds are expended be open to the county public and prepublicized. Committee for the Cents-Able Plan for Lee’s Future.” 41 .000 increase. almost two million tourists my. “A ad Washingtonwas hired to conduct the ad consultant cam.” even tactics and by some who were in favor of the tax hike.Brian Griffin. Brian Griffin. The television ads were called scare“misleading an insult to tourists.claim tainted her nents effort. was mounted.resented what they saw as an attempt dents to them against “snowbirds”—the out-ofpit area visitors who are a vital part of the local econo. saying the moneyfrom private sources. They won’t enough revenue. chairperson of the committee. president of the Council of Civic Associations. He led the opposition to the sales tax increase.000 from the Lee County raised Industrial Development Authority (IDA). Impact fees on developers are being raised the maximum amount allowable by law. says Hoyem atNewsMike .the out obligatory “paid political advertising. In visited the county putting $1.” As far as the print part of campaign is concerned. H. a network of over 100 civic homeowner associations scattered and across the county. the snowbirds were here.” included.” She confirms her raise group $200. she “The ads ran right during the time says.laws.2 billion into the local economy.He insulted the community and me.R. Sources in the county government deny the charge. Many county in Lee resi. not taxpayers. But the campaign backfired when it suggested that hiking the sales tax was a good to raise needed revenue because it way hit tourists visiting the area as well as those living County year round. Blanchette. that campaign literature was distributed with. which oppo.” to spearhead the drive for voter approval. a county agency. to finance the pro-tax position.
using tech. says Kurt Wenner. The county elections office verifies the signatures and reports the results to the Commissioners . a state tax expert with Florida Tax Watch. Tirey says the hard on the election supports the data conclusion did not influence the outcome “that the ads of election one way or the the other. Our organization relied on nonpaid media coverage to get the word out. particularly that of eral the News. voters can have an issue placed on ballot through a petition-drive—the the collec.like ‘letters to the editor’ and niques media interviews.” Ballot measures provide “an opportunity for citizens—on tax and many other issues— to hold government directly accountable in a timely fashion. assistant supervisor of Pat elections. the state government sets the parame.a speficied number of signatures. a private. Its bias “was even tax evi. is concerned.” He says his group could not afford ads. itIt was more than fair. the board issue held accountable.” he adds. “a few years ago.” For the record. however.media coverage. the board had no option. This is because in itself Florida. favor of a ballot measure must “Those in use cards to collect the signatures small and include the exact wording of their proposal.” The Rules for Ballot Measure s Typically. safeguarding the interests of Florida taxpayers.statewide organization devoted to profit. “A specific percentage of the signatures of voters in the prior election is required—five percent.” As far as the rather gen.” she adds. requires that a local-option sales the state tax be submitted to the voters for approval must or disaproval. Wenner heard says organization has compared Florida’s his state local taxes with the other 49 states and and that they are “lower than average. It needed public approvallocal-option sales tax.in the news pages. but they weren’t necessary paid anyway since the “other side’s ads alienated voters than convinced them. was not required in the case of proposed sales tax increase last the Spring the board was obligated to place because the on the ballot. “In Florida. Griffin says.” he for a explains. “In this case.” As far as the dent paid advertising is concerned.As far as expenditures by his group. “We spent just $12 on handouts.” Wenner notes. The procedures for ballot measures fromvary to state.perspective which was not in favor of torial the increase.” However. In essence. are concerned. however.” he notes. Steve Tirey at the Chamber of Commerce. non. A ballot measure drive by the voters themselves.” 42 .” Lenithan explains. Voters rules also amend the state constitution through a can referenda process. which championed the anti-tax increase. The defeat of the proposed increase in the Lee County sales tax an example of that—one of the most “is lop. that this is the case in the rest points out of Florida as well. tion of Mary Lenithan. explains Tirey. says the media coverage was “unfair” to those advocating a sales tax increase. For example.defeats of a government proposal I sided ever of. Griffin calls Press “excellent. The newspaper “had a particular edi. Florida voters passed a statewidelimiting local property tax increases measure to three percent a year throughout the state.ballot measures in the localities and ters for the under which they can be held.
Direct accountability is somewhat at odds withtradition of representative government in the the United States established by the FoundingThat is one reason why they are Fathers.This is necessary. bal. as does reach all the dominant newspaper there.” they add. which were for by supporters of the sales tax paid increase. Florida officials. rules for holding them vary Although the from to state. American stresses the separation of democracy powers executive.and access to the media for all sides of torate an issue. he adds. both broadcast and print. take elaborate precau.Steve Tirey. voters and a referendum. Not only does the First Amendment guarantee freedom of the press. which allows to cast ballots on specific proposals. In the case of Lee County. but also is a strong American tradition of there local media. The Histor y of Ballot Measure s Referenda and ballot measures to hold government directly accountable go back to the earliest years of the Republic and especially to the two decades of the last century. author of Direct . In Lee County. authors Th Plano of e American Political . more cated democratic. Opinions about ballot measures also differ constitutional among scholars. as well as state their counterparts elsewhere. local affiliates of the major broadcast networks the county’s residents.S. News. in part.measures—indeed all legislation—in lot the U.make sure they are transparent and tions to pre. American political scientists make a distinction between a ballot measure. The Pros and Cons of Ballot Measure s Supporters of ballot measures regard them “as useful check on ill-considered or a dangerous the legislature or executive and as actions by an expression of direct democracy. con.to making the U. who voted for the sales tax increase. president of the Chamber of Commerce of Southwest Florida. legislative and among judiciary. the first heyday Progressive Movement. says Thomas Cronin. which was of the dedi.S. because all cise. Those who Dictionary oppose them “regard them as an unnecessary representative government that check on weakens legislative responsibility. access to the media is not a problem. All the local media carried extensive coverage Press the of sales tax issue.to state and local government and fined why 43 . whereby state legislatures refer a proposed or existing law to the voters for their approval or rejection. is subject to judicial review. Local television the stations also aired the controversial ads. Such democracy Democracyrequire direct practices an informed elec. as in most jurisdictions in the United States.” say Jack and Milton Greenburg.
“You can’t micromanage government in that way.how the extra monies will be ically expended.” She also stresses have that. so did the supporters so overwhelmingly. where tax increases are involved. “A proposed sales Griffin tax increase in (nearby) Charlotte County was placed on the ballot and passed in 1994 because the county had a very specific purpose revenue.the little guys won. however. a viewpoint with which her she opponent. Griffin is philosophical.” Even Griffin. the groundwork must be skillfully laid by proponents. who strongly backs ballot measures. The “did not carefully and specifically board identi. however.” voting says. “We Lee were the little guys in terms of money in this fight. “Ballot measures — absolutely support them. but a supplement in limited circumstances. The most academics influential recent indictment of ballot measures is contained in a book by Washington veteran David Broder. Gail Markham.projects the money would be used fy the for. most haveresidents reservations about ballot no such mea. “We should not routinely legislate by ballot measure. In the sures. of the Committee for a Cents-Able Plan. Ballot who lost measures are “basically healthy. citizen agrees. everyone should get involved. if the voters know and specif. agrees. He calls ballot Post journalist mea. Even so.” She is undaunted failure of her cause at the ballot about the box year and says she will continue to try this to convince voters that a sales tax increase is necessary. She led the fight to pass the sales tax increase. have passed here.” he says. for the the Board did not properly identify what they need. believes they should not be overused. But here in Lee County.Everyone asked liked them. “People have to know what they are for.” he But says.” Concerning the success of his campaign against the sales tax increase in County. as ballot measures have mushroomed in number over the last 20 years. It’s just that votersto feel that way. ballot measures have a role.” although initiatives proposing tax increases “are much more difficult to pass.Gail Markham.“alien to the spirit of the Constitution sures and careful system of checks and its balances. 44 . case ballot measure proposing a sales of the tax increase.” In Lee County. “It’s a good idea. political scientists stress that ballot measures should not be a substitute for action by lawmakers. not only did opponents support this direct democracy tool. But where citizens’ pocketbooks are involved particularly.” says. Tax increases can pass ed the here. so has opposition to them by a number of prominent and journalists.money for.” Steve Tirey at the Chamber of says Commerce.activist Brian Griffin.
public safety. This law provides that any records made or received by a public agency in the course of its official business be open to the public for inspection. 2005 with no extension without fur ther voter approval. the legislature was not covered under the Sunshine law. 2000 to December 31. as authorized by Section 212. Chapter 286 of the state’s statutes. The Sunshine law establishes a basic right of access to most governing bodies of state and local agencies. I just wish that affects more would participate in something people that directly affects them and not take democracy for granted. Florida voters overwhelmingly passed a state Constitutional amendment mandating open meetings in the legislative branch of state government. another constitutional amendment was passed that extended it to the Judiciary. especially if it’s about something your pocketbook. hurricane evacuation and preparedness facilities. A ugust 20 00 The Florida Sunshine Law The tradition of openness in government in Florida began in 1909 with the passage of the Public Records Law. In 1992. the Florida Government-in-the-Sunshine law was enacted. “I think ballot measures are here. Florida Statutes? I ss ues o f Dem oc r ac y. unless specifically exempted by name by the state legislature. I IP E lec t ro ni c Jo u rn als . with citizen advisory oversight committee for expenditures. In 1967. proceeds being used by Lee County and Cities to construct and improve roads. Vo l . No . “We’re taxed like crazy he says. in 1990. juvenile justice. youth recreation. 45 . library. 2 . Initially. one of many such laws around the country.” Sales Tax Ballot Measure “Shall Lee County Ordinance 99-21 be approved levying a countywide one cent per dollar sale surtax from January 1.That is certainly the view of county residents like Jim Wood.” a great idea. Chapter 119 of the state’s statutes.055(2). But. 5.
Jaffa.Washington. Louis The Politics of Shared Power: Congress and the Executive. "Ethics in Government and the Vision of Public Service." 58 George Washington Law Review 417 (1990). D. ed. Kermit L. “The Whistleblower Protection Act of 1989: Foundation for the Modern Law of Employment Dissent. Vaughn.: Regnery Gateway. Privatization. 1994. Fisher. Robert G. 1 Currie. Buenos Aires: Ediciones Ciudad Argentina. The Constitution of the United States: A Primer for the People. Hall. ed." 50Administrative Law Review articles by Senator 339 (1998) (Symposium with Patrick Leahy. w Vaughn. Jr. College Station: Texas A&M University Press. Robert S..University of Chicago Press.VA: George Mason University Press. Mark Grunewald. et al. Barker. "Human Rights: Two Hundred Years of Constitutional Experience in the United States."49 Revista del Colegio de Abogados de Puerto Rico(1988). 1989. Robert S. Perritt. 1996. April 2000. T RANSPARENCY Devine. Barbara B. Harry V. no. and the Meaning of 'State Action. in Víctor Bazán. 3. 1998. Robert S. David P. and Laura S.C. vol.’ “ Public Administration Review 58. 46 . Barker. Henry H. Separation of Powers in the American Political System..Brooklyn. "Recent Developments: Electronic Freedom of Information Act.” 51Administrative Law (1999). May 1998. ed. Least Dangerous Branch: the Supreme Court and The the Separation of Powers. "State Whistleblower Statutes and The Future of Whistleblower Protection. Robert G.Thomas M.Bibliography Further Information on Accountability in Government A CCOUNTABILITY T HE C ONSTITUTIONAL F OUNDATION / Knight. O'Reilly. NY: Carlson Publishing. "El Control de Constitucionalidad en los Estados Unidos. Jensen “Reinventing Government Accountability: Public Functions.4th ed. esafíos del Control de D " Constitucionalidad . and Michael E.. Original Intent & the Framers of the Constitution: A Disputed Question. James T. 531 Review Gilmour. Fairfax. 1996.Tankersley). ." 51 Administrative Law Revie 581 (1999).
Geoffrey A. October. America.: U.) Thompson. Broder. Is su es of D emo c rac y . vol. 32. Inc. John "Enough. 2nd revised. no. Committee Print 103-25. The Special Prosecutor in American Politics. 2000. 2144-2149. . 84. 1993." National Journal . Ethics in Politics and Government. Privacy and Freedom. New York: Atheneum.P. Vo l. 1995. 1989. Ethics in Congress: From Individual to Institutional Corruption. 2000. E XTERNAL W ATCHDOGS Campbell. The Pentagon Papers: National Security Versus the Public's Right to Know. Robert Indecent LibertiesNotre Dame.. Lawrence. pp. IN: University of . 2. G. Randall R. G. Schudson.S. Schmuhl. York: Martin Kessler Books. ed. vol.: U.S.Thomas E. Wilson. Notre Dame Press. Dennis F. D. II P El ec tr on ic J o ur nal s.Alan F. Diego. no. 1996.com. United States Senate. 1995.O. 1999. (Also available in Spanish. Schmuhl. July 1.W. Anne Marie. Washington. Compilation of Federal Ethics Laws. Bridwell. p. 2140-2143. Grossman. Special Repor t: FOIA.C. C A: Lucent San Books. 17. " Quill G OVERNMENT S ELF -R EGULATION E THICS / Committee on Governmental Affairs. pp.: Brookings Institutions."incorporates all amendments ( through September 17. June . The . 2000. Rober t Demanding Democracy. Michael What if Civic Life Didn't Die?The American Prospect March . IN: University of Notre Dame Press. Donahue. 2000. 27. 1998." National Journal . New H. Michael The Good Citizen: A Histor y of American Civic Life. 5 . 1994. Lawrence. 1999. Katy J. Notre Dame. The Power: Government By Consent and Majority Rule inSan Francisco: Austin & Winfield. New York: Viking.Washington. Schudson. KS: University Press of Kansas. April Money. Bur t "We. 2000.P. Direct Democracy The Politics of Initiative.Westin.C . No . the Mob. 2000 Cronin. 1st 1967. Mike "How Citizens Make the Act Work: Application of the Freedom of Information Act. July 1. Democracy Derailed: Initiative Campaigns and the Power ofHarcourt Trade Publishers. D. Augus t 2 00 0 47 . D.C. Solomon. David S. ed. New Wa rd . 27. no. The Electronic Republic: Reshaping Democracy in the Information Age. 32.) Washington. vol. : Referendum & RecalliUniverse. ed..O. Maggs. York: B ALLOT R EFERENDA I NITIATIVES / Harriger. 8. "Standards of Ethical Conduct for Employees of the Executive Branch.April 1996. 1999.
scholars.govt-waste. Congressional Accountability Project http://www. repor ts and newsletters. and inefficiency in the federal government.alliance. reinvention and national performance review information from the National Academy of Public Administration.aspanet.napawash. nonpartisan citizen’s lobbying organization promoting open.org/ Common Cause is a nonprofit. government accountability and ethics-related issues via books. Supported by the dues and contributions of over 250.000 members in every state across the nation.org/orgs/C AP/CAP. mismanagement.org/alliance/ index. which provides information to the public on important topics neglected by the mass media and policy makers.html The Center for Public Integrity’s mission is to provide the American public with the findings of its investigations and analyses of public service.html A nonprofit. teachers and students involved in public administration. honest and accountable government.org/ Citizens Against Government Waste is a private.Internet Sites Internet Sites on or Relevant to Accountability in Government Alliance for Redesigning Government http://www.commoncause.org/ ASPA is a professional association with a membership of more than 10. Common Cause http://www. American Society for Public Administration http://www.000 practitioners. tax-exempt organization founded in 1982 by Ralph Nader.essential. Common Cause represents the unified voice of the people against corruption in government and big money special interests. Citizens Against Government Waste (CAGW) http://www.publicintegrity. Center for Public Integrity http://www. nonprofit organization dedicated to educating Americans about the waste. 48 . nonpartisan.html Links to projects.org/main.
us/government/ The Florida Government Accountability Report describes what Florida’s state government does and how effective it is in meeting the needs of Florida’s citizens. Open Secrets.asp Financial disclosure information from the Center for Responsive Politics.org/2000elect/lookup/ AllCands.state.S.oppaga. government accountability and protecting the rights of employee whistleblowers.com/resources/links/ watchdog.opensecrets. Florida Tax Watch has become widely recognized as the watchdog of citizens’ hard-earned tax dollars.gsehd. civil rights.whistleblower. Legislators and the public now have free.html History.org/ The mission of GAP is to protect the public interest and promote government and corporate accountability by advancing occupational free speech. Since its inception in 1979.org/ Florida TaxWatch is the only statewide organization entirely devoted to protecting and promoting the political and economic freedoms of Floridians as well as the economic prosperity of the state. Over the years.html An extensive list of links to nongovernment organizations whose primary mission is to hold the U. Government Watchdog Links http://www.gwu. government accountable . National Security Archive (George Washington University) http://www.opensecrets.hfni. nuclear safety. direct access to an Internet service that monitors the activities and performance of almost 400 state government agencies and programs.Florida Government Accountability Report http://www.fl.org:The Online Source for Money in Politics Data http://www. analysis and informative data and background information from the Office of Management and Budget (OMB). http://www. GPRA Report: News and Analysis of the Government Performance and Results Act (GPRA ) http://www.ombwatch.hillnews. government under the Freedom of Information Act and sought a centralized repository for these materials.whistleblowers. The National Whistleblower Center Florida Tax Watch http://www. the Archive has become the world’s largest nongovernmental library of declassified documents. The National Security Archive was founded in 1985 by a group of journalists and scholars who had obtained documentation from the U.edu/~nsarchiv/ Government Accountability Project (GAP) http://www. Also see the special focus on contributions to the 2000 national election at http://www. defending whistleblowers and empowering citizen activists.org/gpra/gpra1.floridataxwatch.org/ A nonprofit educational and advocacy organization committed to environmental protection.htm 49 .S.org/home/index.
gov/libwhist.dol.oalj. fair trade and a more open and democratic government. Public Citizen is the consumer’s eyes and ears in Washington.org/scorecard/index. cleaner and safer energy sources.Performance Report Scorecard:Which Federal Agencies Inform the Public? http://www. United States Office of Government Ethics (OGE) http://www. No . a cleaner environment. I IP El ec tro n ic J ou rn als .gov/ The OGE prevents and resolves conflicts of interest and fosters high ethical standards for federal employees. mismanagement and government subservience to special interests by the federal government.mercatus. focusing on safer drugs and medical devices. Public Citizen http://www. 2 . Project on Government Oversight (POGO) http://www. expose and remedy abuses of power.gov/oip The Office of Information and Privacy is the principal contact point within the executive branch for advice and policy guidance on matters pertaining to the administration of the Freedom of Information Act. Office of Administrative Law Judges Law Library: Whistleblower Collection http://www. evaluated by George Mason University’s Mercatus Center research team.usdoj. United States Department of Labor. whose mission is to investigate.org/ The Project On Government Oversight (POGO) is a nonpar tisan nonprofit government watchdog.pogo.usoge.htm A searchable database of documents concerning government accountability. as well as strengthens the public’s confidence that the government’s business is conducted with impartiality and integrity.org/ Founded by Ralph Nader in 1971. 50 . Is su es o f Dem oc r ac y. 5 .html Government Performance and Results Act (GPRA) reports. A ugust 2 00 0 United States Department of Justice Office of Information and Privacy (OIP) http://www. Vo l .citizen.
E L EC T RO NI C Democracy J issues of O U R NAL S OF T H E U. S. D E PAR T ME NT OF S TA T E A CCOUNTABILIT Y T A UGUST V OLUM E IN G OVERNMEN 5 2000 N UMBER 2 .
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