Transparency’s Diminishing Returns

PARIS – Transparency was a central theme in the 2017 French presidential election. Even before François Fillon of the conservative Les Républicains was reported to have paid his wife public funds for unperformed tasks, the eventual victor, Emmanuel Macron, had made transparency a central issue of his campaign.

It is thus ironic that four of Macron’s 15 initially selected cabinet members – including one of the president’s closest advisers – have been forced to resign following reports of alleged misconduct or misuse of public funds, even before any judicial ruling. A freshly appointed member of France’s Constitutional Council has also been forced to resign as well, after news reports alleging that he had employed his daughter in a fake job while serving in the Senate.

The French media have continued to investigate other potential scandals. But, for the time being, the recent series of mishaps seems to have ended. In accordance with his campaign promise, Macron has signed new government ethics rules into law. Under the “Act to Reestablish Confidence in Public Action,” public officials face a raft of new restrictions. They may no longer employ family members on their staff. They have been stripped of their lump-sum allowance for professional fees. And they are barred from using a “parliamentary reserve fund” to finance local initiatives.

Of course, Macron’s ethics law is hardly the first of its kind. In 1988, new transparency rules were enacted in response to a series of political scandals the previous year. The 1988 reforms established France’s system of publicly funded political parties, and required all elected members of the National Assembly to provide full financial disclosure to a newly created commission.

Then, in 2013, after a high-level minister was found to have stashed funds in an overseas bank account, another ethics law was enacted, requiring that members of the government publicly disclose their investments and assets. A new High Authority for Transparency in Public Life was given far-reaching powers to audit and publish public officials’ disclosures, issue rulings on misconduct and conflicts of interest, and refer violations to the solicitor general’s office.

In 2017, the High Authority, for the first time, published all presidential candidates’ asset-disclosure forms on its website. But, more important, it postponed the new government’s appointment by a day so that it could vet the incoming ministerial candidates. And yet this process still somehow cleared the four ministers who had to resign soon after taking office.

Of course, such checks exist in most democratic countries, not least the United States, where the US Senate performs due diligence on most of the president’s appointments. And in many Western countries, there has been significant progress over the past few decades to improve governmental and institutional transparency, ensure competitive bidding for government contracts, and so forth. It is widely understood that democratic citizens have a right to access governmental and administrative documents, and to be informed of the reasons behind decisions that affect them. These norms are in keeping with the principle of sound governance embodied in the European Union’s Charter of Fundamental Rights.

In France, the most recent example of this shift toward greater transparency relates to Brigitte Macron. After public outcry at the possibility that she would acquire the legal status of French “First Lady,” the Macron administration published on the Elysée website a “Charter of Transparency Concerning the Wife of the Head of State,” confirming that she will receive no compensation or budget of her own. It was no accident that this document included the magic word: transparency.

Prior to this, a number of other steps were taken to strengthen transparency in public life: enacting new anti-corruption rules, eliminating patronage in government contracts or civil-servant jobs, and making ongoing debates more open to the public. These efforts, it is hoped, will boost public confidence in French institutions.

And yet polls show nothing of the kind. On the contrary, the French public has continued to demand even greater accountability from those in power. One reason is that emerging digital media, and the race for scoops among news organizations, investigative journalists, increasingly active NGOs, are providing a constant stream of reasons for mistrust. More broadly, citizens who struggle to make ends meet have become increasingly resentful and suspicious of those perceived to be privileged, moneyed elites – especially politicians.

At the same time, the automatic tax audits and asset-disclosure requirements that have been in place since 2016 have been expanded to apply to a greater number of civil servants; and the definition of “conflict of interest” has been stretched ever further. These embodiments of public suspicion do not betoken a healthy political climate.

To be sure, stricter transparency requirements have improved democratic practices across many Western countries in recent decades. But defending personal privacy is still a valid objective, and maintaining secrecy in some domains, such as national security, diplomacy, and human rights, is essential.

Striking a balance between the conflicting imperatives of transparency and privacy will never be easy, especially when the political landscape is tilting toward ever-greater accountability. But decision-makers in any democracy have the crucial, albeit thankless, job of doing precisely that.

Raphaël Hadas-Lebel, President of the Honorary Section of the State Council, is a former Professor at the Political Studies Institute of Paris.

By Raphaël Hadas-Lebel