Lloyd Hitoshi Mayer (Notre Dame Law School) has posted Politics and the Public’s Right to Know on SSRN. Here is the abstract:
In the United States it is taken for granted that members of the public should have access to information about their government. This access takes many forms, including the ability to obtain copies of government documents, the ability to attend meetings of government officials, and the related obligations of government officials to document their activities and to reveal certain otherwise private information about themselves. This access also is often limited by countervailing concerns, such as the privacy of individual citizens and national security. Nevertheless, the presumption both at the federal level and in every state is to provide such access.
Now, however, a number of public debates raise the issue of whether this right to know should extend beyond government-government and private-government interactions to also reach private-private interactions that indirectly attempt to influence government officials. For example, should the right to know extend to public identification of "bundlers" who successfully encourage others to make substantial campaign contributions? Similarly, should the right to know require the public disclosure of all significant funders for election-related spending done independently of candidates and political parties? Should the right to know also extend to significant funders behind grassroots lobbying efforts?
This Article explores these questions. Part I briefly describes the history of the public’s right to know in the United States. Part II explains and critiques the reasons commonly asserted to support the public’s right to know, considering whether they in fact support a right to know about government-related activities and actors on the part of the public, including when it comes to private-private political interactions. Finally, Part III considers the extent to which the public’s right to know should extend to certain specific types of private-private interactions that have political ramifications.