Public reparative work is both highly effective and shrewd.  Most fundamentally, public reparative work invites scrutiny, and all work benefits from feedback that pinpoints strengths and weaknesses alike.  Moreover, public advocacy reaches the widest possible universe of stakeholders, including previously unknown potential allies, disinterested people with objective views, and practitioners in public policy, industry, academia, and all media who build informed awareness.  Crucially, public advocacy work exponentially activates the whole range of target audiences in myriad ways that a practitioner might not even envisage and certainly could not achieve solely by personal approaches. 

Equally useful, public reparative work flushes out opponents, both those with valid points to address and others with invalid points to debunk.  Going public also spotlights very powerful adversaries whose “No comment” says it all.  By contrast, speaking out says volumes by demonstrating best faith commitment to serving the common good and by activating the transformative concept of shame in those who refuse to stand up for the common good.  Shame is potent, if often maddeningly slow acting.  Indeed, even those who explicitly reject shame can inadvertently reveal susceptibility by dismissing the concept too emphatically. 

Tactically, public delineation of bad practice, ensuing harms, and proposed remedies strips offending parties of both credible defense and plausible deniability. Truly, publicly disclosing a serious concern previously known to comparatively few makes it everyone’s big problem.  For a conscientious practitioner themself, speaking out closes the door to backsliding on frustrating days, of which there will be many. 

In contrast, maneuvering behind-the-scenes for even the worthiest goal might succeed narrowly but can ultimately self-defeat by implicitly endorsing the self-serving power brokers who perpetuate harmful practice in the first place.  Likewise, formal whistleblowing — which generally entails privately approaching enforcement entities via an attorney, ceding agency to them, and remaining otherwise anonymous — can stop a specific injury but is unlikely to help repair a field or stanch systematic pathologies.  True, enforcement entities can deploy significant resources to an immediate goal of harm cessation.  But enforcement entities dole out information stingily rather than share it widely, and therefore cannot help to identify related injuries, develop best-practice remedies, enlist allies from the widest possible universe, or build consensus to implement remedies. 

Outplay Lobbyists at Their Own Game to Fix What Needs Fixing 

An experienced U.S. practitioner in any field knows acutely what practices cause harm, which remedies to avail, and who can help or hinder.  Likewise, an experienced practitioner knows both the power of the public sphere and at least some tools to deploy there.  After all, employers, industry groups, and lobbyists use the same public tools every day to burnish status, advance agendas, and rebut critique. 

Regarding the last point, many, if not most, experienced practitioners have witnessed at least one instance of an employer or other entity swiftly mobilizing “crisis management” tools to publicly deflect, deny, and denigrate external criticism.  By the same token, most experienced practitioners know whether their employer will allow them to use public tools to fix their field or alternatively sideline or even terminate them for doing so.  Either way, an experienced practitioner can effectively co-opt public lobbying tools to advance the common good — i.e., to repair their field and the country — because every practitioner knows what tools command respect, instill fear, and induce shame in peers.  Likewise, every practitioner knows the key foundations of their field to create pressure, e.g., legal safe harbors, enabling legislation, or general word-of-mouth. 

An experienced U.S. practitioner who publicly works to repair their field and the country has a great tactical advantage in that they can maximize impact by creatively amplifying their message with the whole array of public tools.  Similarly, a practitioner can use their savvy to evaluate initial effectiveness and determine follow-on actions and optimal audiences.  Importantly, every field is much wider than a practitioner may initially suppose when considering allied sectors, clients and customers, and vendors such as suppliers, accountants, and counsel, for a start. 

As one possible starting point, a practitioner in any regulated U.S. field — most U.S. fields are subject to at least some federal or state regulation — can post an unexpungible, tell-all document on a regulatory site.  How? By responding to a regulatory request for public input with a submission that both airs industry dirty laundry and directly addresses regulator questions with impeccable analyses, clear remedies, and conclusive rebuttal of opposing views.  Indeed, most regulators post the entirety of an electronic submission immediately and maintain the posting for perpetuity.  And no regulator can censor any part of a response merely because it discomfits others. 

Moreover, pertinent U.S. law such as the Administrative Procedure Act (APA) obligates a regulator to publicly and explicitly address each good-faith remedy proposal in several parts of subsequent regulation.  First, the regulator must summarize each proposal and then identify the response, respondent, and response site.  Crucially, the regulator must also provide explicit rationale as to why a final regulation incorporates or excludes each remedy proposal.  Having the rationale can be a godsend where a regulator rejects a proposal because the rationale can provide a practitioner with grounds to contest the rejection, for example by filing a Freedom of Information Act (FOIA) request to ascertain rationale veracity.  A public submission also constitutes actionable evidence of regulator adherence to or violation of the APA or other governing statute. 

Seems Like a Lot? Imagine How Bad Actors Will Feel 

An exemplary tell-all response is a great roll-out tool to generate media attention, enlist allies, agitate bad actors, and agitate them some more by delivering media reporting to offending entities, industry groups, peers, more regulators, academicians, and others who ostensibly value good practice. 

Collectively, the public promotion and private agitation will generate a bonanza of actionable information to incorporate into follow-on public work such as: 

• Meeting with regulators and providing written supporting information of industry harms and remedies
• Submitting responses to new regulatory requests for comment and combing through others’ responses to scrutinize proposals, arguments, and data
• Filing follow-on responses that evaluate others public responses, highlight supporting information, and pre-emptively rebut opposition
• Petitioning for new rulemaking and augmenting petition files
• Endorsing others rulemaking petitions and augmenting the respective petition files
• Writing op-eds and blogposts
• Speaking on major media podcasts
• Joining industry and accreditation groups and taskforces to openly challenge bad practice
• Moderating, speaking as panelist, and offering irrefutable comments at public policy, industry, regulatory, and academic convenings
• Producing peer-reviewed articles, working papers, and progress updates
• Providing academicians with research insights and feedback 
• Speaking on-the-record to more media and communicating directly with subscribers in real time via live Q&A
• Presenting insights and proposing lines of questioning to legislative inquiries, both U.S. inquiries and non-U.S. inquiries, and reviewing final reports
• Contacting your representatives to arrange face-to-face meetings with them 

I concluded soon after leaving Moody’s that I could most effectively advance my work by always speaking for attribution, including in closed-door meetings that were otherwise private, and by never communicating off-the-record or relying on personal networks. From there, I perceived that I must create irrefutable language to advance my goals — ergo flip-clause-swap-contract — and reject lazy industry lingo such as “hedge” that intentionally obscures through vagueness. 

I also learned that I could effectively place my work in front of people who should — but may not want to — know about it by leveraging social media and email.  For instance, I often dial-up the pressure by requesting on-the-record-response to on-the-record questions posed in joint emails to companies, U.S. and non-U.S. regulators, industry groups, fellow-practitioners, academicians, and journalists.  The practice is win-win in soliciting either deafening silence or at best weak response, both of which constitute useful information to critique and publicize. 

Similarly, I have cold-called law enforcement to provide information in ongoing investigations and to assess adherence to consequent settlements.  And, although not an attorney, I single-handedly produced and successfully submitted a proposed amicus curiae brief to the U.S. Court of Appeals for the 2nd Circuit regarding the ultimate Lehman Brothers litigation of the flip-clause-swap-contract. 

My 100%-public approach produced two highly satisfying and productive work affiliations.  I worked as a byline journalist covering the flip-clause-swap-contract and other complex-finance while regulators implemented best-practice rules in 2015-2016.  And when the first Trump Administration jeopardized the same rules, I resigned as byline journalist to defend the rules and soon after affiliated as Senior Fellow at Croatan Institute, where colleagues’ support helped me exponentially in building-out my workstream.  Among recent projects is a book proposal detailing the themes here — namely my self-funded, private-citizen work to fix my field and the crying need for other experienced U.S. practitioners in all fields to do the same.