The New York Times recently announced a program of expanded reporting on the Supreme Court. It will build out a team to look “more deeply behind the scenes, into the heart of how the justices use their influence and shape the law.” The Times is responding to the Court as, in its words, “America’s most secretive branch of government.” Its concerns will be extensive, ranging from conflicts of interest to closed door discussions among justices. In the background of this announcement was the news that the Chief Justice was requiring court clerks and their employees to sign non-disclosure agreements.

It is not surprising that the Court will face this searching journalistic inquiry. The power it exercises is an obvious source of these pressures for transparency. In a highly polarized polity, the Court’s decisions on sensitive political, cultural, and social issues are especially likely to provoke sharp disagreements from the “losing side” and arouse its suspicion that law is being subordinated to private or political agendas. And it is also true that as a result of its long-delayed adoption of ethics codes governing conflicts of interest, or the inadequate explanation of decisions reached without briefing and argument on the “shadow” or emergency docket, the Court has invited appropriate criticism from observers who just think that, on certain transparency measures, the justices could do better. Yet, as the Presidential Commission on the Supreme Court noted for its readers, there is nothing new in furor and conflict over the Court and its role.

But the new Times initiative also raises a question about how we think about the priorities for transparency policy and reform in a democratic system. We do well to look past the misleading indicators.  The loudest calls for “full disclosure” or “more sunlight” are often heard when the system yields unpopular or highly controversial results, but transparency may have little to do with the source of the problem. Troubled periods such as the one we are experiencing, featuring deep distrust of government, raise the temperature of these demands. One result of these pressures is that what excites the most interest is not necessarily where the largest transparency problems lie.

And transparency debates are never “only” about disclosure. Disclosure demands, followed by disclosure regulation, are often the first steps toward more direct regulatory action. In other words, first comes enhanced transparency, then, the conclusion typically follows that improved or more disclosure is not enough and more affirmative legal reform is needed. Hence, the frustrations with Court transparency have led to proposals for external policing of its adherence to and enforcement of an ethics code.

As the political scientist Bruce Cain has stressed, “[T]ransparency rules apply to all branches, but given the different functions in a separation of powers arrangement, they do not apply in the same way to each.” Courts, the Supreme Court included, are indeed more secretive, but the charge of “secrecy” tends to obscure the reasons why courts adhere to transparency in certain respects but not in others.  Transparency expectations rightly attach to key aspects of the process by which the justices, or any judges, reach decisions: briefing, oral arguments, and the publication of written opinions. But there are legitimate reasons why, in other respects, courts depend for their effective operation on closed rather than open doors. Justices require space for private conversations about pending cases as they explore resolutions and build support for particular outcomes. Confidentiality is especially significant within a body of few members in which some degree of mutual trust is essential. So, while courts could doubtless do better with financial disclosure reform and the conduct of the emergency docket, it is not obvious that a major problem presented by the Supreme Court is that we do not know what Justices say in confidence to one another, or in the presence of clerks and employees, about the cases before them—or about one another. There is a major institutional cost to prying open doors that are best left closed.

The question then is: what do the current stresses on democratic self-government suggest about other directions that transparency policy and reform should take at the present time?

There are new and consequential developments in the exercise of public and private power, and the relationship of the one to the other, which carry major implications for transparency and the design of legislative reforms to achieve it. What follows is a partial list, and certainly news organizations like the Times also play a vital role in bringing to light key information about these other transparency concerns. But the specific issues identified here should rank among the highest priorities in a well-targeted program of transparency focus and reform.  

Official Corruption

We see a direction in the conduct of the presidency that presents transparency concerns of the first order—concerns that cannot be justified by an appeal to what the institution requires in order to properly function. Donald Trump is exercising the power of his office in aid of multi-billion-dollar business enterprises that are enriching himself and his family. That he is doing this is not a secret, but it is not clear in adequate detail how deals are made, or decisions are influenced, by considerations of personal or family financial gain. The conduct of the Trump family business interests overseas, which involve lucrative business partnerships with foreign government-controlled business entities, is exposed only to the extent that the working press can uncover more than the public record provides. Transparency reform is screaming for attention here. It would include requiring presidents, and the businesses in which they hold interests, to report publicly on sources of income derived from foreign sources.

Presidents should also be barred from establishing “blind trusts”: the wealth possessed and managed on behalf of a president should be fully disclosed. The mechanism of blind trusts requires faith that they will be independently managed and successfully protect against the fact or appearance of conflicts of interest. There is history to suggest, as in the current administration (and, for that matter, others), that skepticism on this score is warranted. It seems that the public (and press and political opposition) have the strongest interest in knowing in detail a president’s financial income, interests, and holdings, and the manner in which they are managed during his or her term in office. The “trust” implied in the blind trust arrangement will be hard to achieve, and the consequences of misplaced trust—when financial interests affect official actions— are serious. In this instance, full transparency works best.

Weaponized Law Enforcement

The advent of weaponized law enforcement also merits attention in an up-to-date transparency reform program. Weaponization was not unknown before Trump, but it is being practiced now at a level and with an intensity that should drive reforms of various kinds, among them transparency reforms. Grand juries operate within a black box that enhances the power of prosecutors to bring charges motivated by animus of various kinds, including those pursued in the service of a weaponization program. In recent months, grand juries have demonstrated that they can reject these pressures, as they did in rebuffing the Trump Administration’s attempt to indict Members of Congress for accurately advising the military that they are bound to disregard illegal orders. But in the realm of weaponization and beyond, it is clear that the grand jury system could benefit from reform that includes transparency measures. Among a number that have been long debated are the right of counsel to be present in the grand jury room and the appointment of counsel to advise the grand jury to ensure that grand jurors do not have to rely wholly on prosecutors for answers to questions.

Private Lobbying Power

Another focus of reform should be the federal lobbying laws that provide limited access to information about the use of vast private power to influence legislative and executive branch policy. In a period of keen concern with wealth inequality, the well-recognized inadequacy of these laws stands out. At the federal level, the mandatory disclosures offer only a sketchy picture of how much organized interests are spending and how. Their “grassroots” advertising campaigns to build pressure on legislators are not subject to public reporting requirements. These precise contours of reform will be contested: in this field of reform, as in others, the right balance between transparency and other policy considerations is not always easily struck.

The current law does not properly strike it. Now major questions of public policy are pending, prominent among them the proper regulatory approach to artificial intelligence. With massive resources at their disposal, the major AI companies are expanding their lobbying programs. These and other deployments of great wealth to influence public policy belong on the list of transparency reform priorities.

Conclusion

The argument here is not that any institution, including the courts, is above the demand for more transparency. Expectations of institutional transparency should, however, be tied tightly to how these institutions properly function. In an angry time, the risk arises that the wrong priorities would be set.