The Coming Flood of FOIA

– May 18, 2020 Reading Time: 5 minutes

A FOIA (pronounced “foy uh,” at least in the Midwest) request is a call for information from a government agency under a Freedom of Information Act. The U.S. federal government and lots of others allow citizens to make such requests, ostensibly because “informed citizens [are] vital to the functioning of a democratic society.”

I say ostensibly because a good case can be made that FOIA request systems are necessary only because politicians SUCK (pronounced “suck,” at least in the Midwest). FOIA systems are not in American constitutions and in fact discussion of them dates from the 1950s and the rise of the military-industrial complex.

By the second Johnson administration, they were deemed necessary because of the widespread recognition that politicians: Strengthen their own power at the expense of individuals. Undermine civil liberties on the flimsiest pretext. Create unfair and unsafe regulations to benefit their own interests. Knock personal and private governance, again for their own benefit.

Over the decades, FOIA requests have become institutionalized and largely worthless. I have filed two for historical research purposes and neither returned satisfactory results. In one, I asked for the database underlying a web page related to bank mergers and was sent, six weeks later, a printout of the web page. In another, I was referred to NARA (National Archives and Records Administration) for information about its holdings of SEC documents that should have been on NARA’s website in the first place. In short, politicians who SUCK have rendered FOIA a good way of slowing, rather than speeding, information dissemination to citizens. Queue Assange and Snowden.

I started to consider making FOIA requests about COVID-19 to help me decide who to vote for this November but then it dawned on me that many voters will want the same information and it seems pretty inefficient to ask our fiscally strained governments, all of which stayed open during the pandemic despite heartfelt calls for them to stand down, to fulfill 100 million identical requests.

It then dawned on me that what Americans want, what they really, really want, is La FOIA Grande. Americans want, and deserve, ALL information from ALL U.S. governments, especially regarding COVID-19, the lockdowns, the novel coronavirus née Wuhan virus, the entire kit and kaboodle. And all in an API (application programming interface), which will help computer smarties make sense of all that information.

Then private incentives will take over as investigative journalists and operatives from both political parties dig up dirt. In no time, voters will be well-informed about what their putative leaders did, or didn’t, do during the Great Coronavirus Scare of 2020 and how much their brave leaders should be blamed for the Great Repression that followed.

Of course when I put it that way, I can see why politicians would want to drag their feet on a massive FOIA request. One can almost hear the excuses already: national security, executive privilege, too costly, irrelevant, blah, blah, blah. So we need a Plan B, an alternative to La FOIA Grande, so frightening that politicos will consent to revealing their COVID-19 thoughts and actions in detail.

I suggest threatening politicians with sortition or lottocracy, which would entail selecting rather than electing our next batch of officeholders. Some background is necessary here. Most Americans rest happy knowing that this November, they will, presumably, be able to go to the polls and vote the bums out, be those bums donkeys or elephants.

But can elections really change anything? Due to our 50.000000001 percent fetish, America has long been dominated by a two-party system, a.k.a. a duopoly. What does that mean for the quality of our policymaking?

Duopolies are almost as bad as monopolies when it comes to charging a quality-adjusted price in excess of what would prevail in a competitive market. Both monopolies and duopolies, are therefore, generally speaking, illegal in the commercial realm. And yet they are practically mandated by our election rules. (The whole oligarchy debate misses the point, IMHO.)

Duopolies are more dastardly than cartels because they do not have to explicitly collude to cap supply and hence raise prices. They can settle into a pattern of easy living where both firms/parties collect economic rents, a.k.a. get something for nothing. Firm A offers product X in black, while Firm B offers product X in white, both for $Y > 0 more than they could charge in a competitive market. The biggest threat to their cushy existence is not the other duopolist but upstarts that might offer real competition.

In the political realm, America’s two political parties have changed names or voter bloc alignments every now and again but third parties have rarely dented the duopoly. The most recent attempt, the Tea Party, flopped before fizzling out in the corpus of the Republican Party. And I say that with a major claim to be its intellectual founder — see my L.A. Times op-ed “The Party’s Over” on 18 March 2008 for the deets.

The barriers to entry for third parties are just too high given the “first past the bar” or “winner take all” nature of most U.S. elections. New entrants die, or get sucked into the maw of the duopolists, before they can build enough support to win elections.

The current crisis, the fourth within a generation to show the complete ineptitude of the federal government (9/11 and Iraq occupation; Katrina response; 2008-9 financial crisis and bailouts; COVID-19), suggests the need for more fundamental reforms than a mere election between Frick and Frack, or Joe and Don, can possibly bring.

If we can’t get La FOIA Grande, it is time to make America a democracy, a true democracy, not a fake one dominated by a duopoly of power-hungry statists that on a quality-adjusted basis cost American taxpayers far too much.

True democracies select their leaders rather than elect them. Look it up under the terms sortition, demarchy, allotment, lottocracy, or selection by lot. Think of juror selection but only from a pool of pre-qualified applicants who do not ask to serve, but agree to serve iff (if and only if) selected. Ancient Athens selected its leaders by sortition, as did various European jurisdictions more recently.

The key to success is to match pre-qualification criteria to the demands of each office. Criteria for selection into deliberative bodies can be lowered as the size of the body grows. Criteria for judgeships must be highly technical, while that for President needs to be more stringent than currently. Our most recent presidents have been an ex-actor, a fake billionaire, a father-son team of middling abilities, a lying crook, the friend of a lying crook, a peanut farmer, a philanderer, and a Kenyan (or so the fake billionaire claimed).

The moment is especially opportune to switch to selection because our election systems are a mess, possibly under Russian influence, and stretch physical distancing guidelines. Moreover, the Presidential election, as it stands right now, pits two geriatric men of dubious remaining mental and physical capacity against each other in what will be the most important presidential administration since the Great Depression, and possibly the Civil War if the state and federal governments continue to bicker.

Over the years, many others have suggested we move to sortition but discussions always get bogged down in details about qualifications. Some fear, rightly, that qualified pools will still be composed mostly of old white guys. While that may be true, those old white guys will not have to be rich to gain office and will not be beholden to anyone for campaign contributions. And in future crises, we will not have to worry that government officials are making decisions with an eye on the next election rather than doing what is best given the facts at hand.

If the notion of [insert the name of your worst nightmare] serving as President, governor, mayor, or lawmaker frightens you, as indeed it should, work to reduce the power of government officials. Without detailed knowledge of how specific elected officials thought through the coronavirus scare, knowledge only possible with La FOIA Grande, voters are essentially voting blind and will know no more about the two candidates they will be asked to choose between this November than they would about a randomly selected one.

In short, politicians need to dish so voters can make informed decisions, or they need to give up their hoary, cushy duopoly.

Robert E. Wright is the (co)author or (co)editor of over two dozen major books, book series, and edited collections, including AIER’s The Best of Thomas Paine (2021) and Financial Exclusion (2019). He has also (co)authored numerous articles for important journals, including the American Economic Review, Business History Review, Independent Review, Journal of Private Enterprise, Review of Finance, and Southern Economic Review. Robert has taught business, economics, and policy courses at Augustana University, NYU’s Stern School of Business, Temple University, the University of Virginia, and elsewhere since taking his Ph.D. in History from SUNY Buffalo in 1997. Robert E. Wright was formerly a Senior Research Faculty at the American Institute for Economic Research.