Colorado Confluence

Steve Harvey:

Good question, John. It raises the broader question of what is the optimal balance between ensuring that we have a completely transparent government, and avoiding placing paralyzing costs and burdens on that government in the name of transparency? I know that there are some who would argue that paralyzing government is a good thing, but not those who understand the sheer bulk of indispensible administrative tasks that a modern state with a functioning modern market economy must perform, and certainly not those who would rightly balk at the notion of an expensive government apparatus that exists for the sole purpose of being transparent, rather than actually accomplishing anything.

First, to address the question you are asking: How much of a government official’s communications should be subject to open records laws, when it is impossible to determine in advance which of those communications are private and which are related to public business?

The Denver Post article that you cited speculates that Governor Ritter uses his private cell phone to conduct government business that he doesn’t want to be available to public scrutiny. But if the issue is that public business should be available for public scrutiny, a law that prohibits the use of a private cell phone to conduct public business would be just as effective as publishing private cell phone records. Making private cell phone records public no more resolves the problem than prohibiting the use of any cell phone other than a publicly issued one for official business, and, in fact, resolves it less neatly.

Making private cell phone records public only turns that cell phone into a public one (paid for by the elected official rather than the public), and pushes the problem one cell phone further out, incentivizing the (presumably legal) use of a third cell phone purchased by a third party whose records are not being made public. Prohibting the use of any cell phone other than the one designated for public business issued to, or identified by, an elected official eliminates such loopholes, and eliminates the need to invade anyone’s privacy. Sure, an individual law maker can break the law and use another cell phone, but this is not a problem that is eliminated by making private cell phone records public.

When I first read your post (too quickly, as it turns out), I interpreted it as a question about publishing elected officials’ cell phone numbers, an issue which raises interesting issues of its own. Similar to the problem I describe above, publishing elected officials private cell phone numbers only incentivizes buying a second (or third) cell phone in order to avoid allowing their private one to become dominated by constituent calls, as would inevitably occur. This has two interrelated strikes against it: It is purely redundant, duplicating at additional cost the function of the office holders’ office lines, at additional cost to either the office holders’ themselves or the public (for those elected officials who are not issued an official cell phone now, being required to have one available for public use).

If it comes out of state revenues, it either results in additional taxes or reduced services, for the sole purpose of forcing elected officials to have an otherwise unused cell phone that constituents (and others) can call, rather than their land lines in the state house. If, instead, it comes out of the elected officials’ own pockets, this imposes yet one more cost on people who have chosen to serve the public in a job that (in the case of state legislators) pays $35,000/year, and comes at many personal costs (such as having people insist on being able to call you on your cell phone at all hours and in all circumstances).

Personally, as an aspiring elected official, I’d like to be as accessible to my constituents and to the people of Colorado as reasonably possible. There are few things I enjoy more than engaging with people on issues of public interest, and trying to find efficient, effective solutions to tough problems. But this particular means of imposing such an accessibility wouldn’t actually increase accessability at all (the second cell phone service set aside for public use will be a mere voicemail system, accomplishing nothing that the legislators’ phone lines at the state house doesn’t already accomplish), but would impose additional costs for no additional value.

That is exactly the opposite of how we should be governing ourselves: We want every penny spent to return a value that leaves no doubt it was well spent.