The Clinton Emails: Politics, Governance, and the Limits of Transparency

In the days that have passed since the revelation that Hillary Clinton never used her official State Department email address, instead using a private address (hosted on a private server), two lines of inquiry have emerged. The first regards Clinton’s choice as a matter of governance. These pieces have focused on the security of this approach to email, and questions about whether the former Secretary of State complied with the rules in effect during her tenure. A few people have taken on the bigger questions about what this means in the context of an Obama administration that promised greater transparency, and, of course, how this reflects on Clinton’s own bid for the presidency.

The second strain has emphasized the likely political fallout of this story. The political science consensus has been strong: Clinton’s email address is unlikely to affect the 2016 election. As John Sides declared on Twitter, “In October 2016, no persuadable voter will be thinking about Hillary Clinton’s email account.” Similarly, Brendan Nyhan wrote, “It is hard to believe that a lack of transparency in Mrs. Clinton’s use of email will have a significant effect on a general election that will be held some 20 months from now.”

Taken together, these two questions seem to add up to a powerful disconnection between elections and governance. A high-level executive branch official – a Cabinet Secretary – did something that violated expected norms and possibly also broke the law. She is seeking higher office, and yet it is highly unlikely that any meaningful accountability will come from the electoral process.

There are a couple of explanations for this, and it’s possible that they are all at least partially true. One comes down to issue salience. Of the many issues that voters (especially, as sides put it, persuadable voters) might use as criteria for their decisions, email transparency issues just aren’t likely to make the cut. The economy, healthcare, and more concrete national security concerns (terrorism, wars) will eclipse smaller and more abstract considerations.

The second factor is while an election might, in theory, hold Clinton, Obama, or the Democrats accountable, it doesn’t sound like this practice was limited to Clinton. One of the early defenses that emerged was that other Secretaries of State have also used private email accounts for government business. That others did this too doesn’t necessarily make this a good practice, but it does make it hard to hold individuals or even parties accountable for it.

An important corollary to the second factor is that elections are not especially good ways to deal with systemic problems. Formal rules or informal practices that are so deeply built into the system that they transcend individuals, administrations, and parties don’t lend themselves to electoral mechanisms of change. Elections do a good job of punishing leaders and parties for mishandling the economy, for controversial policies like the Affordable Care Act, and sometimes for a war that has lost public support. But how are voters going to punish the party that has a secretive executive branch or that rakes in millions of corporate dollars to fund its campaigns?

(Don’t bother saying a third party. Even if another party did overcome the various obstacles to national viability, it would be subject to the same institutional incentives as the Democrats and Republicans.)

The real problem here is that we expect the electoral process to do work for which it was not designed and is not well suited. The focus on accountability and transparency as mechanisms to prevent the abuse of power has developed over time. Presidents themselves have cultivated this emphasis on the people as the ultimate governing arbiter, which alone should arouse suspicion. My research on mandate claims illustrates how presidents have stressed the accountability and transparency implied by invoking election results precisely when they want to defend expansion of their authority. As a result of these efforts, a sense has developed over time that the main check on the executive branch is the people, instead of the other branches. After Watergate, a variety of “sunshine” policies went into effect for Congress as well as the executive branch, but it’s not clear that the important work of either institution has actually become more transparent or subject to meaningful public scrutiny.

For transparency to be effective at controlling government officials, someone has to be paying attention. The whole idea is that information should be available to the public, who can then use it to punish or reward at the ballot box. In this sense, the relationship between the governance and politics implications of the Clinton emails is actually the reverse of how we’ve been conceptualizing it. It’s not that the electoral process is impervious to transparency issues. It’s the lack of electoral repercussions that undermines the meaning of transparency laws in the first place.

This might be fodder for an indictment of an inattentive, disengaged public concerned more with their bank accounts than with the health of American democracy. And public records laws, when implemented well, can allow access by journalists and others who can communicate with a broader public about what the government is up to. This requires that transparency rules not be mostly for symbolic show, or written in a way that makes it both easy and desirable to circumvent them (as seems, at the moment, to be the case with Secretaries of State and email addresses).

An argument can also be made that the way we currently think about transparency places a great deal of responsibility on the electorate, without asking much of the other branches. Clinton’s own “I want the public to see my email” comments focus on the populist side of transparency rather than on whether her actions violated the rules in place. This is straight-up Federalist 51 here: “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” We don’t want to rely exclusively on the government to police itself, but over-reliance on transparency creates perverse incentives and puts a responsibility on the electorate that mass publics are simply not equipped to address.

It’s true that asking Congress to exert a meaningful check on the executive is probably even less realistic than asking the electorate at this point. Our current situation does not reflect the Madisonian vision of checks and balances. But we nevertheless miss a great deal when we fail to understand the contingent nature of how transparency rules -formal and informal – have developed. Some measure of transparency is crucial for democratic governance, but this is only one mechanism of many to ensure accountability and rule of law. This means we should be all the more critical about what we expect these rules to do, and about who is really responsible for preventing abuses of power.

[Cross-posted at The Mischiefs of Faction]

Julia Azari

Julia Azari is an Assistant Professor at Marquette University.