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Greg Hinz of Crain’s Chicago Business recently wrote a blog post expressing concerns about the impact of our recent court victory in our effort to get copies of federal grand jury subpoenas issued to the Governor. Greg’s post can be read here (registration required) and a post about our suit is right below this posting. The essence of Greg’s concern is that disclosure of subpoenas will greatly harm the reputation of the politician receiving the subpoena despite the fact that a subpoena is not evidence of guilt or illegal behavior.
The following is my response to his post which appears in the comment section of Greg’s blog:
First, I agree that readers shouldn’t worry about Greg going soft on Illinois and Chicago politicians.
However, I disagree with just about all the rest of the column.
Greg rhetorically asks if politicians have rights too. They do, but just as with all other citizens, those rights are defined by the law, not by their wishes or preferences.
Greg also asks if politicians deserve the presumption of innocence. Again, the answer is they do, just as does any citizen does. However, the presumption of innocence is a legal standard for legal proceedings, not public opinion. Some may wish that strict standards be imposed upon public opinion, but our Founding Fathers wrote the 1st Amendment’s free speech clause to ensure that there was a maximum amount of debate about public issues.
Courts have repeatedly held that speech about public affairs is to be encouraged, even in instances where it may be raucous, inflammatory and less than completely accurate. To choose otherwise is to make the government the referee of what is appropriate for public discussion and history is full of examples why that is not a good idea.
In the case at hand, the BGA did not get a leak or inside information, we asked for the subpoenas in a perfectly legal and transparent fashion, through the Illinois Freedom of Information Act. We did get two subpoenas early in the litigation and we posted them on our website so readers could determine their impact and meaning. I fail to see how this harms the body politic.
In terms of the privacy rights of politicians I think Greg’s concerns are not warranted. First of all, the Freedom of Information Act allows for certain narrow categories of public records to be withheld and mandates all others must be released. Among the records that can be withheld are those that “if disclosed, would constitute a clearly unwarranted invasion of personal privacy.” The Governor claimed that exemption in denying us in our request and the court specifically held the exemption did not apply.
Furthermore, the Act only applies to public records of public agencies. It does not apply to private records or to private individuals. In other words, a politician is under no obligation to respond to a Freedom of Information Act request that deals with their purely private life. For example, if I request the Governor’s personal tax returns or Speaker Madigan’s billing records as a property tax attorney they can tell me to buzz off.
Greg posits that public affairs is already a difficult arena and more transparency will scare off the best and the brightest from serving in public office. I believe the opposite; that more transparency will scare off the bad guys, such as George Ryan. If George Ryan had known that his corrupt deals would have been subjected to public review then I doubt he would have engaged in most of his illegal conduct.
Many don’t wish to serve in government and engage in politics because of its all too frequent sleazy nature, not because it is some mythical “City on a Hill” and mere mortals will fail to measure up to the exacting ethical standards of contemporary politics.
Generally speaking, I don’t believe that we should provide more secrecy to encourage public service. Indeed as the court stated in our case “[t]he legislature has concluded that sunshine of public scrutiny is the best antidote to public corruption.” I think the problem with public office in Illinois is that far too many politicians have been far too comfortable ensconced in the halls of power, not that have been inconvienced by ethical standards. I don’t recall the last indictment and conviction for the politician who was too ethical and transparent.
Lastly, Greg brings up the scenario of the politician who is tarnished by a leak. First of all, 22 months of litigation generated by a Freedom of Information Act request isn’t exactly a leak. Putting that aside, even in Greg’s scenario the politician survived. I can’t think of a situation where a politician has been hounded from office simply by the acknowledgement that they have been subpoenaed.
To be polite, the implication of corruption or unethical conduct hasn’t exactly been a bar to public office in Illinois. Paul Powell, George Ryan and Rod Blagojevich all had a fair amount of ethical baggage that was well known and yet they all managed to get elected or reelected to statewide office. The well known problem of corruption at City Hall hasn’t stopped Mayor Daley from winning election after election.
In the end Greg and I just don’t view the implications of our court victory the same way. The fact that it can be publicly debated is a good thing in and of itself as far as I am concerned.
However, when looking at the long and sad history of public corruption in Illinois, much of what predates modern ethics and transparency laws, I simply cannot work up much concern for our political class’ sensitivity to the possibility of poor P.R. based on facts and documents. I am much more worried about the harm they have inflicted upon regular citizens and taxpayers with their actual misdeeds and actions.
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