"Sunshine is said to be the best of disinfectants."
-- Supreme Court Justice Louis Brandeis
In such a furtive climate, President John F. Kennedy could seriously consider keeping the existence of the early manned space orbits entirely secret. The Civil Aeronautics Board, charged with setting airfares, routinely negotiated rates with industry representatives in secret sessions; the public, press and even inquisitive Members of Congress were denied access. In the Nixon years, the Office of Economic Opportunity refused to release its annual report. In another celebrated case, the Navy claimed that its telephone directories should not be made public.
Nowadays most government information is readily available to those who seek it, a dramatic shift in public expectations which has made government far more open and accountable. Much of this change can be traced to the Freedom of Information Act (FOIA), which has helped uncover hundreds of cases of government waste and fraud, unsafe environmental practices, dangerous consumer products, unethical behavior and assorted wrongdoing. The FOIA has been used to reveal the dangerous defects in Firestone 500 steel-belted radial tires and the exploding gas tanks of Ford Pintos. It disclosed the Navy's lavish decoration of admirals' quarters on naval destroyers, drug abuse among NASA workers and the CIA's investigations of John Lennon. An NBC reporter using the FOIA confirmed the existence of the FBI's COINTELPRO operation, which spied on and harassed domestic political dissidents in the early 1970s. Public Citizen's Critical Mass Energy Project uses the FOIA to compile a comprehensive annual list of safety "mishaps" which occur at the nation's nuclear power plants. (Nearly 3,000 occurred in 1987.)
The presumption that the public's business ought to be conducted publicly -- and that the burden to justify any secrecy rests with government -- owes much to Congressman John E. Moss, a tenacious California Representative who made it his personal crusade to revamp the government's information (i.e., secrecy) policies. Even though the Administrative Procedures Act of 1946 theoretically provided standards of public accountability and due process, Moss held hearings from 1955 to 1966 to show just how easily federal agencies could thwart the law. Moss himself frequently had trouble obtaining information from government agencies, particularly the Department of Defense. Moss and the other Members of Congress saw the FOIA not only as a tool for empowering the public but as a tool for empowering themselves. Congress smarted from the executive branch's high-handed refusals to share its information with Congress; the FOIA offered a double-barreled solution to executive secrecy.
Somewhat miraculously, Moss's FOIA bill passed through Congress in 1966 without attracting much attention, and was signed into law by Lyndon Johnson without fanfare. The new law established three basic principles: 1) Government documents must be made available to any person upon request, regardless of why they are sought, and certain records, such as agency decisions, must always be disclosed. 2) Nine specific varieties of sensitive government information (classified documents, trade secrets, records of ongoing investigations, material that would violate a person's privacy, among other categories) are explicitly exempted from disclosure. 3) Information-requesters are authorized to sue in federal court to force recalcitrant agencies to disclose documents.
Joan Claybrook, President of Public Citizen, recalls how federal bureaucrats reacted to the new openness mandated by the FOIA: "I had gone back to government [the NHTSA] in 1966, and all of a sudden we had to administer this thing called the FOIA. Everyone was horrified -- horrified! -- that we had to give out these documents." Few good-government reforms could rival the tactical beauty of the FOIA: an inexpensive yet highly effective new means of holding government and business accountable for their conduct. While the law clearly had an impact, many federal agencies soon found ways to subvert its requirements by delaying their responses to information requests; by requiring requesters to pay large fees to search for and copy records; and by giving overly broad interpretations of what constituted "investigatory" records, thus exempting many documents from the law.
From the beginning, Ralph Nader had been a strong proponent of open government in general and the FOIA in particular. Indeed, he had managed to insert a FOIA-like provision in the 1966 auto safety statute, and the first "Nader's Raiders" report, on the Federal Trade Commission, had acquired much of its information by threatening to sue the agency under the FOIA -- at the time, a highly unusual tactic. By 1972, open government had become an issue of such ongoing importance to the citizen movement that Nader founded the Freedom of Information Clearinghouse, an organization affiliated with the newly formed Public Citizen Litigation Group and supervised by its director, Alan Morrison.
After several defeats in FOIA cases before the Supreme Court in the early 1970s, it became clear to Morrison and Clearinghouse attorney Ron Plesser that the law needed to be greatly strengthened. The skulduggery of the Watergate scandals proved to be the catalyst for reform, and in 1974, Senator Edward Kennedy and an aggressive contingent of citizen activists helped push through a much tougher FOIA.
The new amendments made the FOIA a more responsive, precise instrument: Federal agencies were required to reply to requests within two weeks; search and copying fees could be waived if the disclosures could be seen as "primarily benefiting the general public"; requesters who were forced to sue agencies in order to obtain documents and "substantially prevailed" in court could recover their attorneys' fees from the agencies; and the definition of what constituted "investigatory" records -- the Act's biggest weakness -- was clarified and narrowed.
The past fifteen years have seen a blossoming use of the FOIA, government proceedings that are far more open, and a new empowerment of citizens. No longer can Washington insiders and regulated industries exploit their illicit back channels to obtain government information, a common practice which allowed them secretly to manipulate policymaking. Agencies must now share their records with all comers, a reform that gives citizen activists a more equal basis for influencing agency decisions. Through such groups as the Reporters' Committee for Freedom of the Press, journalists too have become sophisticated users of the FOIA, creating yet another force for open, accountable government. That the FOIA helps uncover wrongdoing is perhaps best illustrated by the types of information that remain exempt from the Act, such as banking records. Protected by a shroud of secrecy, dozens of scandals in the savings and loan industry were allowed to fester and grow to massive proportions, eventually resulting in an equally scandalous taxpayer bailout.
The Battle for Open Government
By itself, the Freedom of Information Act is only a tool. Its real value lies in how aggressively it is actually used. That has been the ongoing challenge for the citizen movement -- to encourage use of the FOIA, ensure that it works properly, and maintain and strengthen its provisions. By far the single most active practitioner of the FOIA law is Nader's Freedom of Information Clearinghouse, which has helped countless individuals obtain government documents and waged more than 200 lawsuits over the past 18 years.
By the late 1970s, the very success of FOIA provoked a backlash among businesses that provide information to the government for licensing, regulatory programs, and government procurement. Even though business is a frequent user of the FOIA, companies complained that the law gives their competitors and the public too much access to "confidential" information. And law enforcement groups advocate withholding more information about organized crime, terrorism and counterintelligence. The CIA, predictably, wanted a complete exemption from the law. In response, a secrecy-obsessed Reagan administration mounted a determined attempt to carve out broad new exemptions to the FOIA in 1981 and 1982, a campaign that citizen groups succeeded in beating back. But a 1986 effort to amend FOIA did result in several new, potentially weakening amendments.
Resistance to the FOIA has also taken the form of court challenges seeking to narrow the application of specific FOIA provisions. Over the years the Clearinghouse, in concert with the Public Citizen Litigation Group, has worked to defend the law and help achieve the broadest possible interpretations. "Once the door slams shut on a category of information, that category of information is lost for the future," explained a Clearinghouse attorney. "The consequences can be immense."
One reason that Nader and the consumer movement have devoted such attention to FOIA litigation is its usefulness in citizen action. As Evan Hendricks, editor of Privacy Times once put it, "Proving that an [environmental or safety] hazard exists can be extremely difficult because it requires tedious and often time-consuming research, access to technical data, expertise and money. As a result, average citizens are often at a tremendous disadvantage when they attempt to learn about the safety of their surroundings." The FOIA helps equal the odds.
The festering "secrets" pried loose by FOIA users over the past 24 years vividly show the value of the law. For example, Public Citizen attorneys have used the law to discover that the Eli Lilly pharmaceutical company was suppressing data on "adverse reactions" to various drugs. One arthritis medication, Oraflex, was responsible for about 50 deaths among elderly patients in the U.S., and the discovery resulted in criminal prosecution of Lilly officials. In another Public Citizen case, a FOIA request obtained USDA meat inspection reports which confirmed the existence of unhealthy conditions in meat packing facilities and inspectors' failures to report deficiencies. Another request showed how a research group sponsored by the nuclear power industry was holding secret meetings with the NRC on vital safety matters. After Arab nations called for a boycott of Israeli goods, an FOIA request by the Litigation Group helped identify which U.S. firms were observing the boycott. Another request helped uncover records showing cases in which Members of Congress had interfered with IRS investigations. Other FOIA requests have revealed the "crosstown hypocrisy" of companies that complain to federal health and safety agencies that a proposed regulation will cause great financial hardship, while at the same time telling the Securities and Exchange Commission (and hence investors) that the identical regulation will have only a modest financial impact.
Using the FOIA as a crowbar, Public Citizen has repeatedly challenged the anti-democratic culture of secrecy that thrives at the Central Intelligence Agency and National Security Council. While there are clearly many legitimate state secrets, history has shown that "national security" has been a grossly abused rationale, used more to avoid accountability than to protect valid secrets. One Public Citizen lawsuit, Sims v. CIA, suggests how difficult it can be to penetrate the citadel of CIA secrecy, even with the FOIA. In the 1950s, the CIA conducted a series of sordid "mind control" and mind-altering drug experiments on unwitting subjects, known by the code name MKULTRA. In an attempt to learn which universities and professors had been involved with the project, the Litigation Group made a FOIA request and, predictably, was forced to sue. The CIA claimed that the MKULTRA professors should be considered "intelligence sources" and therefore exempt from the FOIA -- and the Supreme Court agreed.
One reason that it is so difficult to prevail in FOIA litigation against the CIA is that the federal courts are reluctant to second-guess Agency claims of "national security," however far-fetched. Nonetheless, FOIA litigation sometimes does yield valuable documents and does put pressure on them to play by the rules. A 1987 FOIA lawsuit, for example, revealed that CIA Director William Casey had investments in companies that were doing business with the Agency.
Perhaps the most tantalizing FOIA case brought by Public Citizen involved a request to the National Security Council seeking to confirm or deny a rumored arms-for-hostage swap with Iran as a means to finance the Nicaraguan contras. The August 1985 FOIA request, submitted more than one year before the Iran-contra scandal was made public by Attorney General Edwin Meese, was eventually denied, however. The NSC said that its files did not contain any such documents. It later turned out that the NSC's complex document storage system had been deliberately used to evade the FOIA request, thus allowing the agency's dubious activities to continue, eventually resulting in the illegal diversion of funds. When the scandal finally broke, Public Citizen obtained a court injunction to try to prevent destruction of any NSC documents. But Colonel North, already alerted that he was going to be the scapegoat, had conducted his "shredding party" the weekend before.
The CIA and NSC's pitched resistance to the FOIA is unusual, fortunately. Over the years, the spirit of the Freedom of Information Act has become so widely accepted that Congress has passed many other laws to enhance public access to information. The remainder of this chapter explores this little-noticed information revolution in American government.
The Use and Abuse of Government Advisory Committees
As federal agencies have come to rely more on scientific experts for its decisions, there has been a proliferation of official advisory committees whose judgments are very influential. But when is science science, and when is it politics? When are federal agencies ignoring or distorting scientific evidence? The best way to find out, of course, is to open up the entire process to candid public scrutiny -- a solution that is prized by the champions of both science and democracy.
By 1971, more than 15,000 scientists and engineers were giving formal advice to the government, and instances of political abuse of science were becoming increasingly common. For example, President Nixon, in a scheme to win congressional support for the proposed supersonic transport (SST), appointed a scientific committee in 1969 to assess the environmental, technological and economic aspects of the controversial aircraft. When the committee issued a report that was almost entirely unfavorable to the SST, however, Nixon proceeded to suppress it even though its contents had nothing to do with national security or the military.
To prevent these sorts of manipulations of technical expertise, the consumer movement rallied in 1972 to enact the Federal Advisory Committee Act, which set uniform ground rules for the conduct of the government's 1,439 advisory committees. The rules, later amended in 1975, were fairly simple: Meetings shall be open to the public. Records shall be kept and be made available to the public. Representation on committees shall be balanced, and the process for selecting advisors shall be open to public scrutiny. Breaches of the law shall be actionable in court.
The new rules have improved the quality of scientific advice by opening it up to criticism and comment. They have also reduced the likelihood of conflicts-of-interest among scientists serving on advisory committees, and prevented suppression of politically embarrassing evidence. Finally, the rules have prevented a scientific elite from making policy choices that belong to the American people. As EPA Administrator William Ruckelshaus once told the American Chemical Society, "Decisions such as the fate of DDT are not decisions solely within the purview of the scientist for him to make in the solitude of his laboratory. Rather they are basic societal decisions about what kind of life people want and about what risks they are willing to accept to achieve it."
Despite the simple, eminently fair mandates of the Federal Advisory Committee Act, many agencies and special task forces have refused to comply with them. One of the more egregious abuses involved the President's Private Sector Survey on Cost Control, better known as the Grace Commission, after its director, industrialist J. Peter Grace. The Commission was created by President Reagan in June 1982 to identify ways to root out waste and mismanagement in the federal government. But the Commission's real agenda was to make some distinctly partisan, business-oriented interpretations of "waste" -- food stamps, educational loans, toxic dumping regulations, nutrition programs, small town post offices.
Comprised of 161 top corporate officers, the executive board wanted to enjoy the official status and legitimacy of a government body without having to observe the rigors of the democratic process. The Grace Commission's deliberations were closed to the public and press, and even the names of task force members were withheld until the threat of a congressional subpoena pried them loose. Given the overwhelming pro-business bias of the Commission's 36 task forces, conflicts-of-interest soon emerged: oil companies urging EPA to weaken hazardous waste regulations, food companies urging less stringent federal inspections of meat, poultry and egg processing operations. In 1985, Public Citizen unmasked the charade in a major expose, "Deceiving the Public," and challenged the Grace Commission's violations of the Advisory Committee Act.
"Advisory committee" litigation is not a particularly glitzy legal specialty. But as the Public Citizen Litigation Group has shown, it can greatly affect the fairness -- and outcomes -- of federal decision-making, especially if more citizens use the information available through the Advisory Committee Act.
The Right-to-Know about Chemical Hazards
One of the most significant advances in citizen empowerment in recent years is the "right to know" concept: that citizens, consumers, workers and others should have a legal right to know if they are exposed to hazardous substances.
After the tragic chemical explosion in Bhopal, India, in 1984, which killed at least 2,000 people, dozens of U.S. communities began to worry, justifiably, about the chemicals being used at nearby factories. With the prodding of consumer and environmental activists, Congress enacted in 1986 the Emergency Planning and Community Right to Know Act. The law directs the EPA to compile an inventory of all chemical polluters (in 1987, more than 18,000 facilities and over 700 toxic chemicals) and make that information available to the public. Historically, industrial polluters could withhold that sort of information at will. Now, as Representative James Florio of New Jersey pointed out, "Industry is no longer in a position to selectively decide what information will be turned over to the public."
Once the EPA's computerized Toxic Release Inventory system was in place in July 1988, citizens were able to find out what companies were releasing what types of chemicals into their communities, and in what quantities. When disclosed to the public, the information can be very activating. The National Wildlife Federation, for example, released a report on "The Toxic 500" companies, an itemized list of facilities that are responsible for 70 percent of the nation's pollution. Local activists are also using the toxic inventory system to identify specific culprits and take action against them. Mandatory disclosure of chemical pollution -- the specific chemicals and the quantities involved -- has itself been a major impetus for chemical companies to reduce their emissions. In 1988, the day before the first Toxic Release Inventory was made public, Monsanto announced its goal of reducing its airborne chemical pollutants by 90 percent over five years. Other companies have adopted a more conciliator attitude towards the issue. Some have even "gotten religion," in the words of EPA Administrator Reilly, by recognizing the economic benefits of devising more efficient manufacturing processes that generate less pollution in the first place.
Another right-to-know program based on the same principle is the Occupational Safety and Health Administration's (OSHA) "Hazard Communication" standard, which requires chemical companies to list hazardous ingredients and label hazardous substances in the workplace. The program, first proposed by the Public Citizen Health Research Group in a petition to OSHA in 1976, was blocked by President Reagan in 1981. Only after a patchwork of more stringent laws were passed by states and municipalities did Reagan's OSHA allow the rule to be issued in November 1983. But the new rule was greatly emasculated. It covered only one-third of the nation's workforce, excluding 60 million at-risk workers, and it gave companies the right to withhold chemical data by claiming they were trade secrets. Working with the United Steelworkers of America, Public Citizen challenged the rule in federal court and won a ruling in May 1985 forcing OSHA to issue a comprehensive worker right-to-know standard.
One of the more creative variations on the right-to-know concept has been California's Proposition 65, enacted into law by voter referendum in 1986. This pioneering law requires any business that exposes the public to chemicals known to cause cancer or birth defects to provide a "clear and reasonable warning" on their products or services. As a result of the law, cancer-risk warnings have sprouted at supermarkets, gasoline pumps, dry cleaning facilities and on hundreds of products. The simple act of disclosing known cancer risks not only sensitizes the public so that it can make more informed choices -- a key tenet of the free market creed -- it also shifts the burden of identifying which substances are actually carcinogenic from the public to business. This greatly accelerates the search for solutions.
"Right to know" is a contagious, long-overdue ethic. Many state and localities now require lawn-care companies to post warning signs on lawns treated with pesticides. After Nader and environmental groups alerted the public to the dangers of Alar, a chemical used on apples to make them redder, some supermarkets began labeling its Alar-free produce and identifying the foreign countries from which its produce comes. Full, public disclosure of information has become so well-accepted as a cheap, effective way to force accountability that it has inspired "Student-Athlete Right to Know" legislation that would require colleges to disclose the academic failure rate of its athletes.
At first, consumer disclosures seem like novelties. In time, they become expectations that permeate the culture.
Public Access to Presidential Records
The fate of presidential documents got the American people very agitated when Richard Nixon decided he wanted to keep secret the millions of pages of official White House documents he had generated. By retaining control of the materials, Nixon would be able to prevent the courts from prying into the legality of his presidential conduct and journalists from dredging up embarrassing information, including transcripts of Nixon tapes prepared by the Watergate Special Prosecution Force. In 1974, to preserve judicial and public access to most presidential records, Congress passed the Presidential Recordings and Materials Preservation Act.
Characteristically, Nixon was not about to give up so easily. He pursued numerous legal challenges to release of his records, including the major court challenge, Nixon v. General Services Administration. From the beginning, the Litigation Group has sued for release of the Nixon records, including a lawsuit against the National Archives over delaying regulations outlining how the Nixon materials would (and would not) be released and a lawsuit over the regulations later issued, which gave Nixon great control over what could be made public.
The battle over the 44 million pages of documents and 4,000 hours of tape recordings was not just about who would write United States history from 1968 to 1974. Ronald Reagan shared Nixon's interest in thwarting public access to presidential documents. As attorney Eric Glitzenstein explained, "President Reagan will be the first chief executive in our country's history to have his presidential papers subject to the 1978 Presidential Records Act," a more comprehensive, generic version of the 1974 law which applies to all future presidents. If the Reagan Justice Department had succeeded in thwarting public access to the Nixon documents, the same legal precedents might well have been used to block access to Reagan's files. Fortunately, Public Citizen's legal challenge to the Reagan Justice Department prevailed in 1988, clearing the way for release of most of the Nixon papers and setting valuable precedents for eventual release of the Reagan papers.
Protecting Individual Privacy
After GM's snooping into his private life, Ralph Nader knows how large institutions can invade an individual's privacy and secretly manipulate his or her life. All sorts of computerized personal information -- credit histories, educational records, employment history, political affiliations, tax returns -- can be used against people without their knowing about it. To deal with these sorts of abuses, Congress, when it was amending the FOIA in 1974, extended the freedom of information concept to the area of personal privacy. Under the Privacy Act, citizens can retrieve personally identifiable records or files pertaining to themselves from executive branch agencies. The new law also curbs the compilation of state dossiers of federal records about individuals and limits the practice of federal agencies exchanging personally identifiable information.
The consumer movement has been a strong supporter of the Privacy Act, and periodically brings lawsuits under it. Since its enactment, however, the Privacy Act's shortcomings have loomed larger. New technologies have created new means of invading privacy, and the law makes it fairly difficult to obtain legal relief, thus discouraging aggrieved victims from suing. Despite its flaws, the Privacy Act sets an important benchmark of individual rights that is likely to be strengthened in the future.
The Rise of the Whistleblower
As Nader and his groups gained greater public attention, they were quietly sought out by individuals of conscience who were disturbed at the immoral actions of their companies or government agencies. They became prime sources of "secret" information that had urgent public consequences and that should therefore be made public. Nader was no stranger to the idea of conscience-driven activism. He had long admired Henrik Ibsen's play, Enemy of the People, in which a courageous doctor insists upon telling a disbelieving village that its well water is polluted. And in his first explorations of automobile safety in the early 1960s, it was a General Motors engineer who privately told Nader about the hazards of the Corvair.
By the late 1960s such individuals were coming out of the woodwork: a doctor in the FDA who told the nation that the artificial sweetener, cyclamates, may cause cancer; a cost-control analyst in the Defense Department, A. Ernest Fitzgerald, who defied his superiors to tell Congress about massive cost overruns on the C-5A transport plane; seven employees of Colt Firearms who told about fraudulent testing of Colt M-16 rifles bound for Vietnam; a General Motors safety engineer in St. Louis who, after GM's inaction, blew the whistle on defective exhaust systems that were allowing carbon monoxide fumes to enter the passenger compartment of 1966-1969 Chevrolets, sending drowsy drivers to their deaths.
To make a public presence out of these people -- to honor them, explore their stories, probe their motivations, and encourage other people of conscience to come forward -- Nader organized the Conference on Professional Responsibility in 1971. While it was not an entirely new phenomenon for insiders to expose scandal within their organizations, the conference helped give the behavior a new name and identity -- "whistleblowing" -- and publicly legitimized the behavior. The book that resulted from the conference, Whistle Blowing (edited by Nader, Peter J. Petkas and Kate Blackwell, 1972), was the first extensive treatment of how individuals of integrity reconciled their personal morality with conflicting institutional responsibilities.
Nader called upon professional societies to establish new, more enlightened codes of ethics to sanction the legitimate whistleblower. To help expand the movement, he founded the Clearinghouse on Professional Responsibility, headed by Peter Petkas. The group eventually disbanded, however, in part because investigating and verifying whistleblowers' stories turned out to be such a highly labor-intensive process. But soon there were other books and articles exploring the issue, and in 1977 the Institute for Policy Studies convened its own whistleblower conference and established the Government Accountability Project, specifically designed to help and protect government whistleblowers.
One lasting, imperfect result of these efforts was new legal protections for whistleblowers in the Civil Service Reform Act of 1978, a major overhaul of the federal civil service system (itself stimulated in part by the 1975 Nader book, The Spoiled System, by Robert Vaughn. The new law established a special counsel at federal agencies to investigate whistleblowers' claims and protect them from retribution. A set of 1986 amendments to the False Claims Act made whistleblowing a potentially lucrative proposition by encouraging private citizens (usually company employees) to sue companies and keep 15 to 25 percent of any monetary recovery obtained.
In the spring of 1989, President Bush signed into law the Whistleblower Protection Act containing many legal provisions that citizen groups had sought for years. While whistleblowers are still burdened by weak legal remedies, the new law gives new teeth to the government employees code of ethics, gives new protections to whistleblowers whose disclosures are significant and reasonable, and neutralizes the Office of Special Counsel that had become a Trojan horse for whistleblowers, "a legalized dirty tricks unit that identified wounded dissents seeking help and then team[ing] up with employers to finish them off," according to the Government Accountability Project.
It is still a risky, career-threatening move for a person to become a whistleblower. While the new legal protections cannot eliminate that fact, especially in organizational climates that frown upon the reporting of wrongdoing, they do make blowing the whistle a little bit easier. Given the immense benefits that accrue to the public, that is all to the good.
Other Empowering Information Sources
Once the Freedom of Information Act began to infect the ethos of government bureaucracy, it was not long before the consumer movement began discovering new ways to unleash information to make government and business work better. Most state governments, for example, have followed the lead of the federal government and enacted state Freedom of Information laws governing state agencies.
At the federal level, regulatory agencies in the Carter years recognized how the compilation and publicizing of reliable consumer information could greatly empower consumers. In addition to the consumer information programs mentioned in Chapter 2, the Carter regulatory agencies made skillful use of toll-free hotlines, product ratings systems, mandatory warnings, and labeling disclosures. Once Reagan's regulators assumed office, however, they mounted a wave of anti-information initiatives -- destroying consumer information, preventing its compilation, limiting public access to government information, and giving valuable government research and data to private vendors to sell at exorbitant prices. Dozens of such scandalous acts were documented by a series of reports issued by the Public Citizen Open Government Project.
The consumer movement has also spent considerable resources trying to pry loose information from companies involved in product liability lawsuits. Plaintiffs often uncover valuable information during the "discovery" process of litigation, during which attorneys examine the other side's documents and witnesses, seeking evidence to support their side of a case. But defendant companies often try to prevent public disclosure of damaging information acquired during discovery; they persuade courts to impose "protective orders" of secrecy, or insist that plaintiffs, as a condition for an out-of-court settlement, agree not to disclose any discovery information.
These secrecy practices prevent other plaintiffs in similar circumstances from learning about the defendants' actual (mis)behavior and challenging their false or misleading claims. Protective orders also make tort litigation more difficult and costly for plaintiffs. In response, the consumer movement has set up clearinghouses to collect and share information on a product subject to frequent litigation, such as the Dalkon Shield intrauterine device or Oraflex and Zomax, two dangerous prescription drugs. To help plaintiffs' suits, the Litigation Group has often challenged the validity of seals on court documents. In one case, for example, it convinced a federal court in 1989 to unseal records that may cast doubt on tobacco industry assertions that there is no medical data linking smoking to any illness or disease -- a revelation that will help families of cigarette smokers in future lawsuits against manufacturers.
Journalism and the Health of a Democracy
Nader realized very early that journalism -- the press in its many aspects -- plays a vital role in a healthy democracy. Indeed, among his earliest heroes as a youth were the muckrakers, Ida Tarbell, Jacob Riis, George Seldes, and others. Journalism at its best, Nader realized, can shine a light on official misdeeds, focus public attention on shadowy behavior, popularize complex topics, and serve as a powerful tool for holding business and government accountable.
The daily press of the mid-1960s, however, was much more of a lapdog than a watchdog. Still untouched by such betrayals of public trust as the Vietnam War and Watergate, newspapers generally declined to mention the brand names of unsafe products lest they alienate advertisers. Most government deliberations and files were off-limits, and politicians, bureaucrats and business leaders were generally taken at their word. Investigative journalism was relatively rare, and consumer stories, when they ran at all, typically ended up on the women's page, which itself had a highly limited notion of women's interests.
The early investigations of Nader's Raiders -- on lax antitrust enforcement, pesticide contamination of foods, worsening air and water pollution, among others -- helped change some of the slack norms that prevailed at the time. In a way, the investigations shamed the mainstream press for not undertaking similar investigations on its own. Even though the Nader reports had their own partisan spin, the advocacy could not be easily ignored because they relied on such a rich profusion of hard facts. Philip Boffey, a science reporter for The New York Times recalled that the early reports "achieved a level of technical detail and sophistication that the press was not routinely doing." Benjamin Bradlee, executive editor of The Washington Post from 1968 to 1991, explained, "[Nader] worked in areas that were naturally appealing and of tremendous interest to readers. A story slugged NADER was permanently on the [news] budget, often with wonderful results. Twenty inches was standard." The Post was so impressed by the Nader's journalistic coups that in the early 1970s it offered him a seven-day-a-week column, although the deal was never consummated.
Nader's achievement was not merely finding strategies for gaining access to the press on its own terms. His investigative reports tried to expand the frame of reference for news stories. "Press coverage of auto safety used to consist of, 'Three people were killed when their car struck a tree'," recalls Morton Mintz, a now-retired reporter for The Washington Post who often covered consumer stories. "We never wrote that some profit-making entity had decided not to install seat belts. There was almost no impetus for changing unsafe auto design until Nader."
Nader's success in enlarging conventional notions of news has stemmed in large part from his success in enlarging the agenda of conventional politics. "Ralph politicized issues, forcing them into the open," said Mark Hertsgaard, a media critic for Rolling Stone. "He showed up journalists as conveying the official line. By his example, he reminded reporters to be skeptical and vigilant."
Nader and consumer groups have a complicated relationship with mainstream journalism. On the one hand, they seek to cultivate credibility among the news media, the better to publicize their latest crusades and reports. On the other hand, they often decry the parochial news judgment and outright censorship that afflicts the media. A columnist for Ladies Home Journal for ten years, Nader charges that its editors would not run any material critical of the cosmetics industry. (A spokesperson for the magazine calls Nader's claims "ancient history" attributable to the publication's previous owner, Family Media.) Cosmopolitan once ran excerpts from a 1983 Nader report, "Women Take Charge," and deleted a paragraph that was critical of the tobacco industry.
Even the most reputable national newspapers have glaring anti-consumer biases, Nader has discovered. The New York Times, for example, has refused to cover such major consumer stories as an election-year assessment of Vice President Bush's role in deregulation; the first report ever published on the behavior of Lloyd's of London in the United States; and the role of citizen groups' in fighting the savings and loan industry and the subsequent bailout. And The Post no longer has a reporter assigned solely to consumer stories, Nader charges.
Rather than criticize media performance through a standing media watchdog group, Nader's preferred alternative has been to found pacesetters for the press: independent groups or projects that demonstrate good ideas and help the daily press live up to its potential. One such effort was the Capitol Hill News Service, an outgrowth of the Congress Project, Nader's massive study of Congress in 1972. Researchers for the Congress Project found that the chief source of news about Congress was legislators themselves. And even those papers that had Washington bureaus or stringers did not usually run aggressive, enterprising stories. The nonprofit Capitol Hill News Service, launched by Nader with a grant of $40,000, eventually became a seven-person operation serving more than 70 newspapers and 20 television stations.
"The idea was to provide news coverage where there was none, and to provide a more pro-active approach to stories," said Peter Gruenstein, the Service's first director, now an attorney practicing in Alaska. The Service's stories did not hew to any Nader directive, but were mainstream daily journalism with more savvy and bite. Under-pricing of the service proved to be the Service's undoing, and in 1978 the ailing operation was bought by States News Service. In its six-year life, however, the Capitol Hill News Service demonstrated to other Washington journalists the wealth of meaty stories waiting to be written about Congress.
The project and other Nader groups have been a rich incubator of future journalistic talent, now represented in a wide spectrum of national publications. Among today's top journalists who spent some measure of their youth learning Nader's brand of investigating are James Fallows, Washington editor for The Atlantic; Raymond Bonner, staff writer for The New Yorker; David Ignatius, foreign editor of The Washington Post; Michael Kinsley, senior editor of The New Republic; David Corn, a columnist for The Nation; Matthew Rothschild, publisher of The Progressive; and Joseph Nocera, a columnist for Esquire.
Nader's role as a pacesetter for the press is well-illustrated by the struggle to enact the Freedom of Information Act, to strengthen it in 1974 and to encourage its use by the press, scholars, citizens, and others. Recognizing that a dysfunctional FOIA allowed secrecy and unaccountability to flourish, Nader founded the FOIA Clearinghouse in 1973 to litigate denials of FOIA requests. At the time, the press had made requests under the Act only three times. Clearinghouse director Ron Plesser joined attorney Mark Lynch to lobby for what would become the sweeping 1974 FOIA Amendments. "Nader's assigning those two guys to the issue had one hell of a lot to do with the Amendment's getting through," recalls Samuel Archibald, a law professor at the University of Colorado who had served as staff director of the Moss subcommittee and had written a key 1972 report that led to the 1974 Amendments.
Press organizations were certainly not indifferent to the FOIA but neither did they play the primary role in using the Act, litigating to demonstrate its deficiencies or lobbying for new amendments. As Archibald remembers, "Concerned, thoughtful journalists were in favor of opening government records, but the press in general wasn't in favor of getting involved." Or as Nader puts it with his customary quotability, "The press was on the record but not on the ramparts."
Since its enactment, of course, the FOIA has become a standard investigative tool for journalists. The FOIA Clearinghouse (now working with the Public Citizen Litigation Group) is probably the most active FOIA litigator in the country, waging some 20 cases a year and twice as many administrative appeals. It has provided vital legal assistance to journalists such as NBC's Carl Stern in revealing the abuses of COINTELPRO, the FBI's domestic spying operation, and Taylor Branch in researching his book about the civil rights movement, Parting the Waters.
Another leading pacesetter for journalists established by Nader is Essential Information, a nonprofit group that unearths provocative information about issues neglected by the mainstream media. Through its Investigative Reporting Project, for example, Essential Information has funded dozens of articles on such issues as illegal U.S. efforts to supply the repressive Guatemalan military, the role of U.S. officials in aiding an Indonesian massacre of leftists in the 1960s, and worker exposure to deadly gases on the job.
Essential Information also sponsors biennial investigative journalism conferences for high school and college students. The conferences give students rare access to big-name investigative journalists and politicians, helping the students to develop broader, more critical perspectives on journalism. (Essential Information also sponsors two major international consumer projects, Multinational Monitor, a magazine that focuses on global corporate abuses, and the Multinationals and Development Clearinghouse. See Chapter 8.)
Periodically, Nader has sponsored other books or reports that try to galvanize the press. How to Appraise and Improve Your Daily Newspaper: A Manual for Readers urges readers to perform a thorough critique of their local newspaper, and then join other community groups in pressing for improvements. Since most daily newspapers are local monopolies, the "readers' manual" seeks to generate an informed consumer-side substitute for competition. Talking Heads: A Look at the Popular and Influential News Commentators looks critically at the biased and vacuous content of television's political talk shows. The book argues that the news and opinion shows are selling the public short, and sheds light on the way that personalities determine the range of political commentary seen on television each week.
A forthcoming publication sponsored by Essential Information, Newsprints, will be a weekly compilation of stories, editorials and cartoons from hundreds of local papers around the country. The idea behind the publication is to provide greater coverage of labor, consumer and environmental issues than do national newspapers -- and to serve as a tip sheet for national papers, showing them what story ideas they are overlooking.
Much of the success of Nader's press-improvement projects comes from exploiting the tension between advocacy and mainstream "objective" journalism. "There's a weird division in this country between journalists and actors on the public stage," observed Michael Kinsley of The New Republic. Nader has deliberately blurred those two roles, breaking a cardinal rule of American journalism in the process. Yet in so doing, he has stretched the limits of mainstream journalism and invigorated it with a larger vision of its own possibilities.
It is a tribute to President Kennedy's wisdom that he did not, in the end, imitate the Soviets and shroud the heroic adventures of space exploration in secrecy. Despite a fascination with covert activities by officials within his own administration, Kennedy came to see that secrecy erodes trust, accountability and democracy itself. "A nation that is afraid to let its people judge truth and falsehood in an open market," he declared, "is a nation that is afraid of its people."