Edwards “Doesn’t Get” Access Issues

“Uh, oh,” I thought. “He doesn’t get it.” I was standing in the rear of the Callaway Room at the Pinehurst Hotel watching U.S. Senator John Edwards’ facial expression. Senator Edwards had just concluded a set of well-rehearsed remarks about the need to protect “personal privacy,” and now my friend Jay Bender, the veteran counsel to the South Carolina Press Association, was posing tough questions about federal “privacy” laws that emasculate state public records laws and cut off public access to important government information. As Jay inquired about Senator Edwards’ views concerning the so-called Drivers’ Privacy Protection Act, which in the name of “privacy” prevents the press from letting parents know whether their children’s school bus drivers have drunk driving convictions, I analyzed the look on the senator’s face.

There was no fear or intimidation there; John Edwards has faced down too many courtroom adversaries for his countenance ever to display either of those emotions. What was there, however, was surprise and puzzlement. No question about it: Senator Edwards was hearing something entirely new to him. He wasn’t “getting it.”

To his credit, the senator acknowledged his ignorance, saying that he needed to familiarize himself with the kinds of issues Jay was asking about. Then he righted himself sufficiently to add that the “invasions of personal privacy” he is most concerned about result from the way personal information is handled by banks, insurance companies and other private entities, not by the government.

Within a few days after Senator Edwards’ appearance in Pinehurst, members of his staff were on the phone, trying to educate themselves so they in turn could educate their boss. “Preparation” has been John Edwards’ watchword, both as a lawyer and a politician, so I hope — and expect — that the next time he finds himself fielding an open government question he’ll “get it.”

Underlying this optimistic scenario, however, is a troublesome question. Why is it that so many politicians – even those as talented and ambitious as John Edwards – “don’t get it” when it comes to the people’s right to know? Why are so few of our state legislators interested in, much less enthusiastic about, expanding access to public records and meetings? How can something so obviously in the public interest as tape-recording closed meetings go down to defeat in the General Assembly? Why don’t the UNC trustees understand that public confidence in their judgment would be enhanced by choosing chancellors in public, rather than behind closed doors? Why are influential legislators not embarrassed to support a bill that would effectively exempt public hospitals from scrutiny by the press or the taxpayers?

I’ve been asking myself questions like this ever since I first took this job in 1979, but I’ve never come up with satisfactory answers. Maybe the educational system is partly to blame for having replaced bread-and-butter “Civics” with “Social Studies” pablum. Perhaps it’s because the political parties in North Carolina have achieved parity (the “outs” always are more supportive of openness than the “ins”). Maybe open government initiatives in the General Assembly are suffering right now from having lost two of their most vocal and effective champions, Representative George Miller and Senator Roy Cooper. Perhaps it’s because too many of our elected officials jump straight to Congress or the General Assembly from business or professional life without having been fired in the kiln of public scrutiny as school board members, or county commissioners. Or maybe it’s just the opposite: maybe some legislators want to hide from the public because they’ve had their dirty linen aired in the newspapers in the past. And maybe, just maybe, it’s because we don’t hold their feet in the fire often enough. (Ask yourself: “When is the last time my newspaper sued a public official for violating the open meetings or public records law?”)

Whatever the answer(s), I do know this: we are often very, very naïve in assuming that politicians “get it.” We open government aficionados aren’t any more immune than anyone else to projecting our own attitudes onto others. To us, the idea that government meetings and records should be open except in rare and limited circumstances is as natural as breathing. No one had to “teach” us such a fundamental principle; we simply absorbed it from our environment. It’s something we “just know,” the way my mother “just knows” how to fry chicken.

Because openness is natural to us, we tend to assume that it’s self-evident to others. I’d be rich if I had a dollar for every time I’ve heard an editor or publisher say about a proposal to extend or improve the open meetings or public records laws, “Surely nobody could be against that,” and for every time I’ve assumed that an old law school friend serving in the House or Senate “obviously” would support an open government initiative. The cold, hard fact is that not everybody’s mother can fry chicken, and not every member of Congress or the legislature naturally leans toward openness, either. In fact, I sometimes think that as North Carolina grows and changes one has to look harder and longer to find either homemade fried chicken or elected officials with a natural affinity for the people’s right to know.

I hope by now you are asking, “What can I do about this?” If so, I have three suggestions:

1. When candidates come to you seeking publicity or endorsements, stake them out on their attitudes about open government before they get elected – and tell your readers.

2. When the NCPA’ s lobbyists or legislative committee ask you to help educate a legislator about an open government issue, say yes — and do it.

3. Hang out as much as possible with somebody who “just knows” how to fry chicken – and pay attention.