RALEIGH – It stands to reason that when governmental bodies conduct the public’s business, it ought to be done in public.
Only, public officials frequently come up with reasons not to.
It’s not hard to understand why. Open government is risky. During legislative deliberations, for example, lawmakers may ask dumb questions or lose their tempers. Publicity makes it harder to conduct and maintain the delicate negotiations sometimes necessary to enact bills, fashion budgets, or close deals. Some public records generated by government action contain sensitive information and could be misused.
But secretive government is also risky. Without the public looking over their shoulders, government officials sometimes make unwise decisions that impose significant costs on the liberty, property, and even lives of their citizens. Usually, these decisions are mistakes reflecting a lack of relevant information and due consideration. Rarely, but more dangerously, they contain the germ of corruption, of improper or illegal relationships between those who wield power and those who may derive private benefit from it.
The North Carolina House of Representatives is currently considering HB 87, a bill to authorize a public referendum on a state constitutional amendment to ensure sunshine in government. Its main purpose is to make it harder for future legislatures to weaken the state’s public-records and open-meetings laws, by requiring three-fifths of the General Assembly rather than a simple majority to do so.
While most lawmakers express support for open government in principle, some are leery of putting open-government protections into the state constitution. “This thing already looks like Swiss cheese in terms of the number of exceptions that are made to it on the face of it identified within this body,” said Rep. Bill Faison, D-Orange. “Not only that, it anticipates that we’d add to the holes in the Swiss cheese in the future. We do not do that with constitutional provisions.”
Faison and some other legislators want to make the measure a statute, not an amendment. While we shouldn’t want North Carolina’s constitution to be littered with a large number of wordy, unwieldy policy prescriptions, there are basic questions of individual rights and governmental procedure that can only be properly addressed with constitutional language reflecting a consensus of North Carolina voters.
Open government is one of them. What sense does it make to enact a statute requiring any future legislative action restricting open government to attract a three-fifths majority? Couldn’t that very statute be overturned with a simple majority of a future legislature?
Remember, the sunshine amendment doesn’t remove any of the current protections and exemptions in our open-government laws. It would make it harder to add new ones in the future – and that’s the right direction to lean.
Open government doesn’t require that every conversation among government officials or interaction between a government and its citizens be publicly accessible. Current law properly protects the ability of majority and minority parties to caucus in private to hash out issues and plan legislative strategy. It doesn’t put a microphone in every government office or surveil every meeting between lawmakers and public employees, lobbyists, reporters, or the general public. And it doesn’t allow automatic access to tax returns, case files, and other records that, if disclosed, would invade the privacy of North Carolinians.
While these exemptions are appropriate, they already create some opportunities for abuse. If they want to, for example, lawmakers can frustrate the intent of the open-meetings law by using small-group meetings and caucuses to resolve many issues ahead of time, holding open meetings merely to codify their agreements with formal votes.
They shouldn’t. Debating major pieces of legislation in open session promotes public understanding of issues and generates better legislative outcomes. In the balance between closed and open meetings, North Carolina law should tip the scales in favor of the latter – something that a sunshine amendment would help accomplish.
Hood is president of the John Locke Foundation.