By Peter Scheer
California’s open government laws–the Brown Act and the Public Records Act, primarily–are often said to vindicate the “people’s right to know” about their government. And indeed they do. But this formulation begs the question: which “people” exactly?
At the country’s founding, seemingly universalist references to “the people” actually meant a minority of the population: white men who owned land. Today, to be sure, the term is more inclusive with respect to United States citizens. But what about noncitizens–undocumented, or “illegal,” immigrants? Do they share with citizens the rights of government participation conferred by California’s open government laws?
The answer is yes, they do.
This is a question of some consequence in a state that is home to 3.4 million undocumented immigrants, whose eligibility (or ineligibility) for government benefits divides politicians in both parties. And yet this should be a less controversial issue because access rights, in contrast to most government entitlements, are not a zero-sum game.
The access laws provide rights of civic participation: the right to examine government records (including records about yourself or your family), the right to insist that legislative bodies meet, deliberate and make their decisions in public, and the right to participate in those public meetings– by standing up and speaking, publicly, about issues that you care about.
These rights impose few, if any, burdens. One person’s exercise of these rights does not come at another person’s expense. And unlike demands placed on scarce services or benefits, the quality of government decision making improves the more people insist on participating in it. When it comes to local government, there’s no such thing as too much transparency.
Consider, for example, a public school system, most of whose students are children of illegal immigrants (in which case the students themselves may or may not be citizens, depending on whether they were born in the US). If the parents are barred from attending and speaking at meetings of the school board, the schools will have no accountability. That is an outcome that is bad for everyone (except, perhaps, incompetent teachers and administrators).
But shouldn’t rights of government participation be reserved for citizens, since only citizens can vote? The answer is no.
Corporations are not citizens and have no right to vote. Yet no one doubts that corporations have access-to-government rights. In fact, corporations are among the heaviest users of the Public Records Act. (And they are the biggest users of the federal Freedom of Information Act).
The decoupling of citizenship from access rights is evident from the language of the access laws. The Brown Act’s beneficiaries are referred to repeatedly as “persons,” never “citizens.” The Public Records Act speaks about the rights of a “person,” an “individual,” and the “people.” A keyword search of both statutes for references to “citizen,” “citizenship” or other variations yields zero results.
The legislature is not unfamiliar with the C-word. Its absence from California’s access laws, which address the relationship between the individual and government, is no accident. The legislature plainly intended to disconnect access rights from citizenship–to provide access rights to persons whether or not they are citizens.
And that is the right choice, particularly in view of the fundamental reality that illegal immigrants are here to stay. Whatever the failings of past federal policies in the area of immigration, and whatever draconian steps the federal government might yet take to stem new flows of immigrants in the future, those illegals who are already here–representing nearly 10% of the California population–aren’t going anywhere.
Given that reality, further political isolation of illegals is in no one’s interest. While it may be beyond California’s power to give illegal immigrants the vote, it has wisely done the next best thing by giving them rights of civic participation under the state’s access statutes
Peter Scheer, a lawyer and journalist, is executive director of CFAC.
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