Sunlight is the best disinfectant, right? Supreme Court Justice Louis Brandeis thought so. I myself have repeatedly argued that to maintain (or rebuild) the integrity of the political and electoral processes we must have meaningful disclosure. This includes disclosure of campaign funding. If money is speech in the political marketplace then the public has a right to know who is speaking. But this also includes disclosure of economic interests. If elected officials purport to represent our best interests then I would like to know to which interests they might be indebted.
However, this argument in favor of disclosure has limits. Disclosure, for instance, should not come at the cost of bona fide security risks. The decision of when, how and what to disclose is, therefore, often a balancing act.
Just last week the state's political watchdog agency, the Fair Political Practices Commission (FPPC), heard testimony and considered how best to strike this balance in the context of financial disclosure forms submitted by California judges. One of the questions addressed by the FPPC was whether and how to make those forms available online.
Judges, quite obviously, face security threats that many others submitting financial disclosure forms do not. Criminal judges put people in jail. Civil judges often make rulings that lead to the unhappiness of at least one party to a suit. There are, in other words, numerous people who at any given time may wish judges harm. This is not a hypothetical or imagined threat. It is real and palpable.
The FPPC took what seems to be the imminently reasonable step of keeping those disclosure forms off of the website for the time being. The FPPC staff is in the process of drafting guidelines to determine how and what to disclose.
Judges must and should disclose some financial information. Judges wield a great deal of power and the people should have ways of ensuring that judicial decisions are made based on the law, the facts and nothing else (including fear for a judge's safety or the safety or her family). Transparency is vital. So is security.
Jessica Levinson writes about the intersection of law and government every Monday. She is a Visiting Professor at Loyola Law School. Read more of her posts here.