When drafting legislation, the Founding Fathers relied on secrecy. They wrote the Constitution and Bill of Rights in abject secrecy. This was no accident. As the following citations show, greater transparency has long been known to degrade the legislative process and provide benefits to powerful factions (lobbyists, partisan groups, and monied special interests).
Today, despite decades of pro-transparency funding by billionaires like Charles Koch, Jeff Bezos and Bill Gates, the tide is turning. In March 2022, Joe Biden became the first U.S. President to suggest the benefits of secret ballots in legislatures. In 2021, Republican Senator Ben Sasse and Democrat Chuck Schumer were the first two U.S. Senators to suggest the same. In 2019 Princeton’s Frances Lee became the first scholar to present the benefits of secrecy to the House of Representatives. She declared that transparency benefits lobbyists, destroys accountability and drives both partisanship and chaos. The members of the committee agreed, becoming also the first sitting members of the House to concede this point. In 2020, scholar James Curry presented similar findings.
On this page we collect over a thousand academic citations on the pitfalls of legislative transparency. These include comments from some of the most celebrated political scientists, journalists, and politicos including Cicero, Alexander Hamilton, and James Madison. In short, a surprising consensus appears – open door committees and public ‘roll-call’ voting leads to gridlock, partisanship, legislative warfare, soaring campaign finance and special interest capture. This is precisely what we see in the wake of the overlooked 1970 sunshine laws - laws which reject the Framers’ intentions and shun the ‘Secrecy Clause’ of the Constitution (Article I, Section 5, Clause 3).
On October 26, 1970, President Nixon signed the Legislative Reorganization Act into law. The LRA countered the express intentions of the Framers who, like most congressional committees for nearly 200 years, worked behind closed doors to limit the power of factions (special interests). These citations (with links to original sources) focus on how this vast increase in congressional transparency benefits lobbyists, special interests and the powerful.
For citations on how transparency is weaponized to drive partisanship, gridlock and poor legislative outcomes, dig into the other menu items above. There we provide collections of citations on the secret ballot, perverse accountability, brubery (the opposite of bribery), and the abject lack of citizen engagement. Finally, it is worth noting that despite the amount of well funded groups pushing for greater congressional transparency, we have yet to see evidence that sunshine confers any benefit on the political process.
The more open the internal operation [of Congress], the easier it is for external groups to interpose their wishes at all stages of the process.Richard Fenno 1977 Congress Reconsidered – 1st Ed
Had the deliberations been open while going on, the clamors of faction (special interests) would have prevented any satisfactory result.Alexander Hamilton 1792 History of the Republic
If we open up our [committees] to the public, every lobbyist in America is going to be there.Rep Harley Staggers (D-WV) 1973 Senate and House Open Up their Sessions
The secret to Congress’s success is secrecy.Russell Berman 2022 Atlantic Magazine Shadow Congress
MSNBC Max Rose 2023 - Public Votes Drive Partisan Craziness
Text from October 11, 2023 on the Morning Joe Show with guest former Representative Max Rose - in a conversation about the secret ballot voting for the House speaker: "The thing with this vote behind closed doors, that's not gonna be the hurdle. Any time you get behind closed doors the extremists become somehow subdued. You know, they are not allowed their cameras, their phones, and not just because that leaks, but so they can't take a photo of their ballots. And so when they can't take a phot of their ballot, they don't have anything to show, whether its a text to Donald Trump, or to his people, or to his extremist base. But the danger will come when they have to go out in public and take that public vote."
The more open a system becomes, the more easily it can be penetrated by money, lobbyists and fanatics… Congress can now be monitored and influenced as never before. As a result, lobbies, which do most of the monitoring and influencing, have gained power.Fareed Zakaria 2003 Future of Freedom
In places where open voting has been implemented, and especially in those countries where it is highly developed – such as the USA and also Norway - it has brought about considerable ills/drawbacks.Swedish Parliament 1899 Translation by Martin Söderholm
We were a conquering army. We came here to take the Bastille. We destroyed [Congress] by turning the lights on.Rep. George Miller (D-CA) 2018 The Class of ‘74
Full citation: Members of the Class believed that if they were able to make the institution and its procedures more transparent to the public, the House and American politics would change forever. “We were a conquering army,” recalled George Miller of California, “We came here to take the Bastille. We destroyed the institution by turning the lights on.”
The idea that more transparency in government is always an unalloyed good is a dangerous populist illusion… The demand to see decisions being made is more often about giving reporters fodder for juicy stories or enabling groups to pressure decision-makers than helping voters make decisions.Francis Fukuyama 2015 The Limits of Transparency
Two decades later, after the advent of sunshine laws, we know better. Open markup sessions often give organized interests a powerful advantage over inattentive citizens, for they can monitor exactly who is doing what to benefit and to hurt them.Douglas Arnold 1990 (Princeton) The Logic of Congressional Action
The groups that benefit most from fishbowl transparency and immediate access to details of ongoing negotiations are tightly organized groups seeking transfers to particular economic interests.Elizabeth Garrett & Adrian Vermeule 2006 Transparency in the Budget Process
There is a danger that too much transparency in many policy settings can weaken deliberation, violate privacy rights, and advantage well-organized interests that possess the resources and motivation to utilize opportunities to monitor government closely.Bruce Cain 2014 (Stanford) Democracy More or Less
Consequences of Sunshine?
Consequences of the 1970s Sunshine
Interest groups have long treated voting records as the currency of legislators’ performance.John M. Carey 2009 Legislative Voting and Accountability
[Sunshine rules are] great for the lobbyists, but the members of Congress hate it. There in the back of the hearing room are all these lobbyists watching a markup session and giving a thumbs-up or a thumbs-down to specific wordings or provisions. It’s a fishbowl for them.Kay Lehman Schlozman & John T. Tierney 1983 More of the Same: Pressure Group Activity
As “sunshine” laws and rules opened markup sessions, hearings and conferences to the public, the lobbyist no longer was left hovering outside the closed door excluded from the action; rather he could be right there watching every move — in many cases suggesting legislative language and compromise positions.Congressional Quarterly 1982 The Washington Lobby
The Myth of Congressional Transparency 2021
Recorded votes on amendments, and open knowledge of who introduced them, makes it easier for the lobbyist to monitor the action and apply pressure where most needed.Congressional Quarterly 1982 The Washington Lobby
When he had to thrash out a new clean air bill, [George] Mitchell, the Senate majority leader, feared lobbying by auto, oil, coal and steel companies would be nasty. He was nervous about squabbling between Midwestern and Eastern senators. So Mitchell decided to hide the messiness behind closed doors. Sandy Grady 1990 Pollution of Reality [secret meetings environment]
By opening committee proceedings, and making members’ actions verifiable, the conditions for a viable market for votes are created.John Ferejohn 1999 Accountabiliy and Authority
It must be recognized that there is no way to open up the legislative process to the people without also opening it up to lobbyists and interest groups.Joseph Bessette 1994 Mild Voice of Reason
Full transparency can do great harm. If implemented without a notion of why some part of a system should be revealed, transparency can threaten privacy and inhibit honest conversation. “It may expose vulnerable individuals or groups to intimidation by powerful and potentially malevolent authorities.”Mike Ananny & Kate Crawford 2016 Seeing without knowing: Limitations of the transparency ideal
If you wanted to track the growth of the deficit with the opening-up of committee markups to the public, you’d find there’s a direct correlation.James L. Payne 1991 (interview) Culture of Spending
It’s the special interests that have the greatest investment in transparency, since that would allow them to pressure the negotiators and poison the political atmosphere in advance of any deal.Joshua Green 2011 Against Supercommittee Transparency
An action performed in public is more susceptible to influence by other agents than an action performed in secret is. Therefore those with the most resources at their disposal are in a better position to influence the behavior of others if such behavior takes place in the open than if it is performed in secrecy.Bernard Manin 2015 Secrecy and Publicity
The original reason for secrecy was protection against interference with Parliamentary proceedings by the Crown.Harold Cross 1953 The People’s Right to Know
The public enjoys no specific constitutional “right to know,” nor does Congress have an affirmative obligation either to disclose or to permit unlimited access to its materials or processes. On the contrary, materials and policy decisions that in Congress’ judgment require secrecy may be constitutionally withheld from the public.Daniel M. O’Brien 1980 The First Amendment and the Public’s Right to Know
Disclosure does not work, cannot be fixed, and can do more harm than good. It has failed time after time, in place after place in area after area, in method after method, in decade after decade.Omri Ben-Shahar & Carl E. Schneider 2014 More Than You Wanted to Know: Failure of Mandated Disclosure
The “secret congress” theory holds that a successful compromise can happen as long as no one makes a fuss over it. Economist 2024 The "Secret Congress" Theory
The House, heeding the demands of reformers, voted today to scrap the system under which it has shaped much of its legislation by secret vote since the first Congress in 1789.Marjorie Hunter July 28, 1970 House Backs End of Teller Votes on Amendments (New York Times)
The more Congress gives people voice, accountability, representation, and open, visible procedures, the more the people will be dissatisfied with Congress.John Hibbing 2002 How to Make Congress Popular (trust)
Then we had open mark-up sessions. And who came to open mark-up sessions? The press and the lobbyists.Timothy Kearley 1982 The American journal of tax policy
Public engagement and transparency may contribute to inferior regulatory outcomes as well as burdensome or ineffectual regulatory processes. Jennifer Nash & Daniel Walters 2015 Public Engagement and Transparency in Regulation
Yet, where there is so much information, others might argue that transparency is reduced, a result of information overload and noise...information overload implies that corruption and transparency can coexist.Albert Breton 2007 The Economics of Transparency in Politics
I think one of the most tragic things that has happened since I have been in Washington was making all the conferences open to us lobbyists.Lobbyist Carter Manasco 1975 Congressional Hearings on Lobbying
President Joe Biden 2022 - Secret Ballot Voting in Congress
Biden announces his support of secret ballots in legislatures during his March 2022 State of the Union address. His comments come at 2:07:26 (two hours, seven minutes and 26 seconds into this stream). He says ‘I may be wrong, but my guess is, if we took a secret ballot in this floor, that we’d all agree that the present tax system ain’t fair. We have to fix it.’ It is worth noting that Biden was a member of Congress in 1986 when Congress decided to take the tax legislation behind closed doors in order to close loopholes and prevent the arm-twisting of members by powerful groups.
Sometimes we don’t want to take a recorded vote when there are a lot of lobbyists out there.Anonymous Member of Ways and Means Committee 1984 The New Ways and Means
Open meeting laws, which choke off all means of communication on the subject of political issues, pose a threat to free discussion and are contrary to basic First Amendment principles.Christopher J. Diehl 2010 Open Meetings and Closed Mouths
A series of three meetings was called to acquaint lobbyists with the reform bill and the proposed floor amendments. The theory was that many lobby groups would profit from open sessions and votes. Not all the groups were interested, but a few were. “We got a big lobby effort going,” Conlon said. “But it is what you would call a ʻpublic interest lobby.ʼ They understand that this bill, with our revisions, is really going to revolutionize this place.” Actually, most of the help came from such liberal and labor organizations as the AFL-CIO , the National Education Association (NEA), Americans for Democratic Action, the National Committee for an Effective Congress, the National Farmers Union , and the Anti-Defamation League of Bʼnai Bʼrith. On July 10 AFL-CIO Legislative Director (and former representative) Andrew J. Biemiller wrote a letter to legislators saying that “the AFL-CIO urges you to be present on the floor when H.R. 17654 is before the House...” Letters on behalf of the antisecrecy provisions also went out from the National Farmers Union and the NEA.Bibby & Davidson 1972 On Capitol Hill
Note: It is hard to imagine a bigger smoking gun than this. They knew special interests would benefit from transparency and it was easy to convince the lobbyists and interest groups of this, as they readily hopped on board. Trouble was, their ties were only on the left. They failed to see - in this highly liberal environment - that special interests on the right would benefit just as readily. This is the beginning of capture, and it was well understood that this would be the result.
Permitting open or easy access to legislators’ internal memoranda, legislative correspondence, recollections of caucus deliberations, and the like could quickly become a goldmine for disgruntled lobbyists and interest groups, as well as for political opponents.Steven F. Huefner 2003 The Neglected Value of the Legislative Privilege in State Legislatures
At first, lobbyists had no work to do on the legislation, since it was crafted by a task force in closed-door meetings… But they sprung into action after the proposal was released.Tory Newmyer 2005 Health Care Reform, 1994
Manchin never heard from lobbies or [foreign] governments about the controversial part of the law because his team drafted it in secret. No one, save for senior Democrats in the Senate, knew they were drafting the measure. Once it came to light, and proved the saving grace for President Joe Biden’s climate agenda, the legislative process moved so quickly that no one had time to react.Alexander Ward and Susanne Lynch 2023 Manchin faces Europe’s wrath (Environment)
PBS Frontline report suggests that Amazon intimidates potential witnesses in public antitrust hearings. Confirmed witnesses are terrified of speaking publicly. At the same time Amazon is one of the nation’s biggest lobbyists, and through Jeff Bezos’ purchase of the Washington Post, also one of the biggest proponents of transparency. Immediately after purchsing the paper, they added the ubiquitous tagline “Democracy Dies in the Darkness.”
Transparency imposes a temporality on political communication that makes slow, long-term planning impossible.Byung-Chul Han 2012 The Transparency Society
Lobbyists may see how a targeted congressman really votes, prompting the member to justify his or her vote out loud and at length… ‘Legislating can be kind of difficult’ says Chairman Dan Rostenkowski. And as every Hill person knows, it gets no easier with reporters and lobbyists watching.Ronald Elving 1993 Shade Settles Over Sunshine Ideals
While the people are entitled to the fullest disclosure possible, this right, like freedom of speech or press, is not absolute or without limitations. Disclosure must always be consistent with the national security and the public interest.US Attorney General William P. Rogers 1958 The Papers of the Executive Branch
The fact that committee meetings are now held in the open – a reform that was adopted in the mid-seventies – has strengthened the lobbyists’ hand and reduced the legislators’ ability to legislate.Elizabeth Drew 1983 Politics and money: the new road to corruption
The powerless will always be prevailed upon by the powerful; only secrecy can protect them from bribery and bullying.Jill Lepore 2008 Rock, Paper, Scissors
I have shown that legislators often vote one way when their actions are hidden and another way when the same actions are recorded for posterity.Douglas Arnold 2002 (Princeton) The Press and Political Accountability
Ten years ago [before the majority of the sunshine laws were enacted], I could sit in a closed committee meeting and say that I couldn’t go along with something, but if they’d let me demagogue it for a while, I wouldn’t stand in the way.Joe Biden 1982 New York Times - Lexicon
There never was any legislative assembly without a discretionary power of concealing important transactions, the publication of which might be detrimental to the community.James Madison 1787 Debates in Convention
The idea was to make the process more ‘democratic’, but in practice sunshine measures intensified the access of lobbyists.James L. Payne 1991 Culture of Spending
The enactment of the ‘sunshine’ laws, which had opened up committee legislative drafting sessions to the public in order to dilute the power of business lobbyists, had precisely the opposite effect. They enabled business lobbyists to monitor the votes of each elected official more closely.David Vogel 1989 The Political Power of Business
Some former sticklers for sunshine agreed with members who said bills were better when drafted away from lobbyists’ watchful eyes. Conversely, as some of these lobbyists sensed a slippage of their influence over the bill-writing process, they became the 1980s’ proponents of sunshine in Congress.Jaqueline Calmes 1987 Congressional Quarterly – Fading Sunshine Reforms
The history of US diplomacy has shown that secrecy often is essential for successGraham Allison 2018 The Case for Secret Diplomacy
Sunshine laws kid the public… legislative compromises and accommodations must also be provided for, and these require privacy [secrecy]. “If we have to meet in our wives’ boudoirs – if they still have such things – we will.”Richard Bolling (D.Mo) 1976 Reform Penetrates Conference Committees
Congressional reforms, particularly the Legislative Reorganization Act of 1970, reduced the power of committee chairs and opened Washington to a barrage of interest group activists, lobbyists, and campaign funders.Benjamin C. Waterhouse 2014 Lobbying America
Clarity and publicity kill… Officials who need to fear that their internal deliberations will be made public are less positioned to make effective public policy.Jerry Z. Muller 2018 The Tyranny of Metrics
Since the Sunshine Rule, markup sessions are very popular events in the legislative process… Cueing up for a markup, and sweating the markup line is part of the lobbyist’s job. John Zorack 1990 (Lobbyist) The Lobbying Handbook
In the 1970s, we junior members argued strongly for openness, as did the media. But we discovered that people posture and abandon the responsibility of legislating.Rep. Philip Sharp 1990 American Government and Politics
Intrigue and cabal are thus deprived of some of their main resources, by plotting and devising measures in secrecy...Mr. Justice Blackstone seems, indeed, to suppose, that votes openly and publicly given are more liable to intrigue and combination (corruption), than those given privately and by ballot.Joseph Story 1833 (Supreme Court) Commentaries on the Constitution
For any speech or debate in either house, [members of the House and Senate] shall not be questioned in any other place.US Constitution 1789 Speech or Debate Clause - Article I Section VI
Voters and interest groups can monitor recorded votes much more easily than other types of legislative behavior. Consequently, the extent to which voters and interest groups can hold individual legislators to account depends on the use of roll-call procedures.Clifford Carrubba, Matthew Gabel & Simon Hug 2008 Legislative Voting Behavior, Seen and Unseen: A Theory of Roll-Call Vote Selection
Empirical results indicate that making it easier to identify individual votes and actions of politicians does not necessarily improve the quality of representation in terms of aligning political decisions and voter preferences more closely.David Stadelmann, Marco Portmann and Reiner Eichenberger 2014 Transparency Does Not Increase the Quality of Political Representation
The leading Republican members should come to an understanding, close the doors, and determine not to separate till the vote is carried and all the secrecy you can enjoin should be aimed at until the measure is executed.Thomas Jefferson 1811 Letter to John Wayles Eppes
A dogmatic approach toward transparency may ultimately prove counterproductive to the reform cause if seemingly public opportunities serve the interests of the few more often than the majority.Bruce Cain 2014 The Transparency Paradox
“The average American does not come down to these meetings,” Mr. Conable added. “It’s the lobbyist,” he said, who in an open session can pinpoint the committee members whose position they want to change. “During any break, they have to be physically restrained from contacting us,” he said, “and we sit there and watch them wince as we violate our alleged deals with them.”
“So, as with the tax-shelter legislation we passed, good legislation is produced by the closed meeting,” he added. He also said he did not think the move to increase by a third the tax on liquor would have been approved in the open “because the distilled-spirit people would have been out there jumping up and down and sending us messages.”Jonathan Fuerbringer 1984 Privacy Called Spur to Tax Bill (NY Times)
A requirement that public officials deliberate matters among themselves in open meetings makes it difficult and unwieldy for officials to discuss issues among themselves, but easy to discuss them with non-public officials such as lobbyists and other special interests, which in turn can elevate the influence of those who have access to legislators as a result of their wealth, status, or political connections.John F. O’Connor & Michael J. Baratz 2004 Some Assembly Required: The application of state open meeting laws to email correspondence.
And therefore no great Popular Common-wealth was ever kept up; but either by a forraign Enemy that united them; or by the reputation of some one eminent Man amongst them; or by the secret Counsell of a few; or by the mutuall feare of equall factions; and not by the open Consultations of the Assembly.Thomas Hobbes 1641 Leviathan
Said one committee member, on the difficulty of writing tax legislation in public sessions: “You’re not going to solve problems in front of an audience” Randall Strahan 2011 The New Ways and Means
Still, members of the Finance Committee and its staff were worried last week about the problems of open sessions and lobbyists… Even before the committee adjourned Thursday, the lobbyists had been at work. Reports are that votes are already changed and the committee may reverse itself this week. Mr. Dole noted the open-session problem himself… he told an aide: “The lobbyists are like flies here.”Jonathan Fuerbringer 1984 Privacy Called Spur to Tax Bill (NY Times)
[In closed sessions] members are more candid and deal with the tougher issues without worrying about being sensitive to the various pressures on them. The lobbyists have less influence.John J. Salmon 1984 Privacy Called Spur to Tax Bill (NY Times)
By closing meetings where important decisions are taken by elected leaders (and others), or by making such situations nontransparent in other ways, leaders are freed of base incentives to pander and posture to those outside and are directed to pursue those policies that best effect the public interest.John Ferejohn 2015 Secret Votes and Secret Talks
Closed door meetings afford more frank and cand id discussions. Members are much more willing to feel free to say things they would never say in public - a particular problem they might have because of a constituent, forinstance. And members are more likely to say, ‘Let me ask a dumb question.’John J. Salmon 1984 Ways and Means Committee: Behind Closed Doors (Dale Tate)
Committees should work more often in execu tive committee session; greater secrecy would improve the chances of free flowing debate and genuine consideration of alternatives.Daniel J. Palazzolo 2017 Return to Deliberation
I find that secrecy can 1) result in outcomes that are less likely to be sabotaged, 2) result in less socially inefficient use of resources by interest groups, and 3) shorten the bargaining process.Barbara Koremenos 2010 Open Covenants, Clandestinely Arrived At
On Oct. 22, 2014 the Earth Institute hosted a panel discussion on the Origins of Environmental Law, featuring Leon Billings and Thomas Jorling, the two senior majority and minority staff members who led the Senate Subcommittee on Environmental Pollution which originated and developed the 1970s Clean Air Act, Clean Water Act, and other major environmental/climate legislation... Jorling discussed the importance of the closed markup session – in the 1970s, laws were written behind closed doors, resulting in a high degree of cooperation. Senators were free to ask questions and discuss issues openly without fear of scrutiny from others. This created a lawmaking process built on “understanding, education and learning that members actively engaged in.” Today, the open session process in lawmaking makes for better theater than an actual practice of understanding.Haley Martinez 2014 Writers of the Clean Air Act: Insight into the ‘Golden Age’ of Environmental Law
Our political institutions ought to largely operate under a veil of secrecy. By secrecy, I mean this: when representatives vote on bills (either on the legislature floor or in committee), they do so by the secret ballot.Brian Kogelmann 2021 Secret Government: The Pathologies of Publicity
It could be argued that transparent negotiations not only beget more social inefficiency, but also produce a collective action problem among the (special interest) groups themselves.Barbara Koremenos 2010 Open Covenants, Clandestinely Arrived At
Senate Majority Leader Baker on advantages of secret sessions
“Sunshine” changes have left members visible and vulnerable to attentive publics, most often organized interests.Larry Rieselbach 1994 Encyclopedia of Policy Studies
Transparency is a useful tool for lobbyists – it enables them to keep better track of their competitors, and to demand equal access for themselves.David Frum 2014 The Transparency Trap
The Freedom of Information Act is one of those laws that ties the hands of government officials and makes it impossible to get government work done.Donald Rumsfeld 1966 Is Our Government Too Open (FOIA)
The adoption of open markup sessions, probably accounted most for exposing members to interest group pressures. Conversely, adopting closed sessions in 1983 seems to have reversed that trend.Sheldon D Pollack 1995 A New Dynamics of Tax Policy?
Thus, the downside of transparency is that it leads lawmakers – who always select appropriate policies behind closed doors – to do otherwise when policy is made in the open.Justin Fox 2006 Government Transparency and Policymaking
Senator Sue Crawford said one of the arguments that had been made was that secret ballots (in legislatures) encourage secret deals. “Actually, the opposite is true,” she said. “If you have a secret ballot, no one can enforce any deal, secret or not.”JoAnn Young 2015 Senators Vote to Keep Secret Ballots in Leadership
C-SPAN allows me to more effectively play the inside-the-beltway game.Lobbyist Ford West interviewed by Stephen Frantzich & John Sullivan 1996 The C-SPAN Revolution
George Kieffer & Andreas Gross 2010 - How Much Democracy is Too Much
Note: Should all meetings between politicians be public, or is some secrecy a good thing? Attorney George Kieffer and Swiss Parliamentarian Andreas Gross debate the merits of the American and Swiss systems. Switzerland
Transparency in government causes the very corruption it aims to prevent, and the problem is universal.Michael Gilbert 2018 Transparency and Corruption
Open meetings give too much ammunition to single-issue interest groups.Sen. Judd Gregg (R.NH) 2011 Exposure vs. Efficiency
Closed-door protection from media glare and lobbyist pressures allows legislators to trade public posturing for private deliberation.Cathie Jo Martin 2013 Conditions for Successful Negotiation
Transparency interferes with the search for solutions. Conducting negotiations of multidimensional, integrative solutions behind closed doors gives lawmakers more freedom to explore policy options.Sara Binder & Frances Lee 2013 Making Deals in Congress
The sunshine laws played into the hands of the lobbyists who were in frequent attendance at committee meetings to keep an eye on the members.Barber B. Conable 2000 Window on Congress
The Senate rules require that all proceedings in executive session shall be kept secret by senators and Senate officers, and provide drastic penalties for violation of the injunction of secrecy.Congressional Quarterly 1929 Secret Sessions of the Senate
America is increasingly embracing a simple-minded populism that values popularity and openness as the key measures of legitimacy. This ideology has necessitated the destruction of old institutions, the undermining of traditional authority, and the triumph of organized interest groups, all in the name of “the people.”Fareed Zakaria 2003 Future of Freedom
Transparency can undermine governance, even when well-intentioned.Richard M. Skinner 2019 Is Congress Broken?
Commitment to transparency allows interest groups capture where the democratic and regulatory process is constrained to prevent it. So, ideologically transparency claims make the negotiation seem more democratic when in fact they enable interest group across the Atlantic to capture the front end of the process.Fernanda Nicola 2015 The Paradox of Transparency
While most members of Congress and the public may be excluded from details of the private negotiations, so are lobbyists. That's a good thing, according to transparency watchdogs who say the involvement of lobbyists working on behalf of their narrow interests could make a deal impossible.Frank James (NPR) 2012 Open-Government Watchdogs OK With Closed-Door Fiscal Cliff Talks
From the interest group point of view, it is more beneficial to mobilize during open negotiations than to mobilize after secret (or open) negotiations. It follows then that interest groups will mobilize more often when negotiations are open.Barbara Koremenos 2010 Open Covenants, Clandestinely Arrived At
The beneficial effect of excluding the public from deliberation is...deliberation behind closed doors can proceed through a process of trial and error, through proposal and counterproposal, through persuasion and bargaining...This is impossible with pressure from the public, including that exerted by special interest groups.Anne Peters 2013 Towards Transparency as a Global Norm
Logrolling (vote trading in legislatures) leads to almost all projects being voted through, including those that have a net value to society that is negative. There can be so much logrolling (and so many bills passed) that even the “beneficiaries” of passed legislation (say, people in one state) may, on net, be worse off because of how much they have to pay in federal taxes to support the other legislation passed (that benefits other states).Deborah Walker 2020 Public Choice - Logrolling
But, neither is there any support in congressional action for the populist view that if people only knew, if procedure was only democratized and opened up, everything would come right. On the contrary, there are abundant signs that the reform mood can play into the hands of unprincipled demagogues. The House could go on a stampede any day for such dubious propositions as a tax cut or a ban on busing.Joseph Kraft 1971 Reform Mood In Congress
Transparency laws are so widespread and accepted in American governments that we rarely bother to actually assess their consequences. With impressive clarity and decisiveness, Harden and Kirkland find that these laws are actually making things worse, enabling organized interests to exert greater control over legislatures.Seth E. Masket 2022 The Illusion of Accountability: Transparency and Representation in American Legislatures
The results of this study hint at an insurmountable negative effect of transparency of public decision-making on citizens trust in a government organization. The decrease in perceived competence demonstrates that the dark side of transparency seems to prevail in this case, particularly the demystification of government behaviour. People notice that behind the scenes, public decision-making is not rational as it appears from the outside (Stone, 2000).Stephan Grimmelikhuijsen 2009 Transparency of local public decision-making
Does open governance strengthen democracy? The Illusion of Accountability contends that it does not. Leveraging a wealth of data from decades of legislative politics in the American states, the book assesses the causes and consequences of 'open meetings laws,' which require public access to proceedings in state legislatures. The work traces the roots of these laws back to the founding constitutions of some states and analyzes the waves of adoptions and exemptions to open meetings that occurred in the twentieth century. The book then examines the effects of these transparency laws on a host of politically consequential outcomes both inside and outside the legislature. This analysis consistently finds that open meetings do not influence legislators' behavior or citizens' capacity to alter that behavior. Instead, a link between transparent legislatures and an expanded system of organized interests is established. This illuminating work concludes that transparency reform only creates the illusion of accountability in state government.Justin H. Kirkland, Jeffrey J. Harden 2022 The Illusion of Accountability: Transparency and Representation in American Legislatures
[One of the first results of the open voting in 1971 was a special interest coup. It] was passage of the $250 million guarantee to Lockheed, by a mere three votes a near miracle considering that the administration, the banks, labor and a lot of industry wanted the bill while the Democratic leaders were concerned to protect their party from a charge that they had defeated the bill and thus contributed to unemployment… Moreover, the House has passed 10 out of 14 major appropriations bills which is far In advance of the usual pace. The serious question, accordingly, is not the quantity of legislation. The serious question is how open politics affects the quality of congressional action.Joseph Kraft 1971 Reform Mood In Congress
While political parties can in principle moderate the effects of interest group politics, it is also true that political parties have sometimes supported reforms that make them more vulnerable to interest groups, such as the “sunshine laws” adopted in the reform atmosphere of the 1970s.Kenneth W. Dam 2001 The Rules of the Global Game
Although there may be benefits to “sunshine laws” and other measures to make negotiations open, our results show that they may actually harm efficiency. For this reason, sometimes negotiations should be kept secret.Tim Groseclose & Nolan McCarty 2001 The Politics of Blame - Bargaining Before an Audience
A close look at the Philadelphia Convention thus reveals several desirable features of secret deliberation. First, secret deliberation facilitates compromise by allowing participants to change their views. Second, secret deliberation mollifies partisan fervor. And third, secret deliberation allows for exploratory and thorough debate. Such insights perhaps suggest that more of our democratic deliberation ought to occur behind closed doors. This conclusion is too quick, for it neglects the potential costs of secret deliberation. Brian Kogelmann 2021 Secret Government: The Pathologies of Publicity
Leon Billings & Tom Jorling 2014 interview on 1970 Clean Air Act - Start at 16:22
Take the banking lobby, for example, one that a lot of lawmakers can depict as a dark influence without fear of retribution by the voters. Wright Patman, the chairman of the House Banking Committee, has a rueful memory of the time two years ago when he tested the theory that open sessions would help defeat the big banks he forever fights.
Rep. Patman was pushing a bill that the big banks opposed, and he figured an audience would demonstrate to other committee members that the people were on his side. Indeed, the committee was influenced by the audience. It voted against Mr. Patman and for the bill the bank lobbyists wanted. “We got some press, but most of the seats in the room were filled by (bank) lobbyists obviously interested in pushing through the softest possible bill,” Mr. Patman recalls. “The members of the committee were looking down the throats of at least $100 billion in bank assets...”Norman C. Miller 1971 Here is a Reform We Do Not Need
Note: Worth noting that lobbyists likely learned from these sunshine experiments as well. And, as Jaqueline Clames wrote in 1987, the lobbyists and banks became some of the strongest proponents for open meetings.
It is considered a breach of good faith for members to disclose what went on in the committee while in executive session, even though they may be sorely tempted to do so; and the votes taken in committee are never made a matter of public record. It is easy to condemn (as some have done) the secrecy surrounding committee deliberations. But there is another side to the matter. In the executive sessions of committees, writes an experienced member already quoted, falls “the most interesting, important, and useful part of the work of a congressman, and the part, of which the public knows nothing. Indeed, the ignorance of the public about it is one of the causes of its usefulness. Behind closed doors nobody can talk to the galleries or the newspaper reporters. Buncombe is not worthwhile. Only sincerity counts.”Robert Luce 1926 Congress: An Explanation
Senators said the closed doors, combined with the inability of senators to posture for the cameras or the news media, led to more free-flowing and elevated discussion as lawmakers expressed their views without fear of retaliation — or today’s equivalent of a social media beatdown. Joseph I. Lieberman, a former Democratic senator from Connecticut, said he remembered such debates in 1999 as some of the most meaningful of his time in the Senate.Carl Hulse 2020 NY Times – Impeachment Out Of Public View
In a world of closed meetings, interest groups must rely on second-hand accounts and often cannot be sure what negotiations had occurred. Furthermore, because most interest group bargains in the budget context are not obviously corrupt, and many are low salience bargains that voters will overlook even if they are made in the open, the threat of disclosure may not appreciably reduce the level of private-regarding behavior. Thus, transparency may empower interest groups and their lobbyists in one realm without substantially harming them in another.Elizabeth Garrett & Adrian Vermeule 2006 Transparency in the Budget Process
Transparency helps promote oversight by voters or constituents, and thus promotes the accountability of representatives to voters or constituents. Yet it also promotes oversight or monitoring by third parties – narrow interest groups, self-interested officials elsewhere in government, and others. Adrian Vermeule (Harvard Law) 2007 Mechanisms of Democracy
Some of the people who are screaming about transparency the loudest are the most ridiculous. They have never believed in transparency a previous day in their lives. They’re only advocating something they believe will scuttle a deal.Melanie Sloan 2012 (CREW - Citizens for Responsibility and Ethics in Washington) Open-Government Watchdogs OK With Closed-Door Fiscal Cliff Talks
All treaties and nominations [in Congress] continued to be debated in secret until the twentieth century... [And] a fickle press showed little interest in the Senate’s open sessions.Donald Ritchie 1991 Press Gallery: Congress and the Washington Correspondents
Note: According to author Ritchie, the very newspapers that were so furious about secrecy failed to show up to observe Congress when the doors were opened. The galleries remain to this day mostly empty with a scattering of lobbyists.
As occurs so often in the course of American reform movements, light is presented as the solution to corruption which occurs in secret and in darkness: light is the great disinfectant. But of course what that reasoning applied to this circumstance meant was that every individual vote would be an even more visible, even more a public declaration for any interested observer to see, just as any observer at a viva voce election could hear every vote. Transparency, not secrecy, was the solution to the ills of American politics. It would take another generation for the opposite view to take hold: that the solution to the ills of American politics was secrecy, not visibility and not transparency, but voting as a private act and a ballot box that shielded every vote from scrutiny.Donald A. Debats 2016 Voting Viva Voce - Unlocking the Social Logic of Past Politics
While Congress is sometimes viewed by the public as an enemy, we wish to call attention to the fact that it is often viewed as an enemy because it is so public. John Hibbing & Elizabeth Thiess-Morse 1995 Congress as Public Enemy (trust)
By now [James] Madison also understood that reticence had its political uses. It was wise to avoid strong statements while circumstances were still unfolding. It was often advantageous to put forth proposals anonymously and thus avoid alienating allies who might not agree. If in avoiding center stage Madison missed some of the praise, he also avoided some of the criticism, thus saving his reputation for a future day… It might have been during the extra time he spent at Princeton that Madison took notes in a commonplace book that survives today. It shows him interested in secrets, which would be natural at a period in his life when he probably wanted as few people as possible to know what had happened to him. Reading the Memoirs of Cardinal de Retz, he stopped to copy this passage: “Secrecy is not so rare among persons used to great affairs as is believed.” He added his own thought, “Secrets that are discovered make a noise, but these that are kept are silent.” De Retz’s Machiavellian insights interested him (“To lessen envy is the greatest of all secrets”), as did de Retz’s description of a rising churchman who did not reveal much of himself, Cardinal Fabio Chigi, who, wrote de Retz, “was not very communicative, but in the little conversation he had he showed himself more reserved and wise (savio col silentio) than any man I ever knew.” Reflecting on the sentence, Madison offered his own, more pointed version: “He showed his wisdom by saying nothing.”Lynne Cheney 2014 James Madison - A Life Considered
Rep Beilenson on how lobbyists harass members’ votes
Throughout American history, whenever we’ve been faced with a deeply entrenched internal divide, the solution has nearly always been forged within a certain zone of confidentiality.Jason Grumet 2014 The Dark Side of Sunlight (City of Rivals)
Most of the tough issues were solved around small tables, over dinner at night, or in the Cloak Room between votes. Often when there was an important disagreement, I would gather the key senators into my conference room and tell them not to leave until they figured it out. Sometimes it took a few sessions, but an agreement usually emerged.Bob Dole 2014 City of Rivals
There has to be some balance struck between privacy for the sake of bargaining and transparency for the sake of accountability. But we have gone much too far in the direction of transparency, so that our core deliberative institutions have become so transparent as to essentially lack an interior altogether.Yuval Levin 2019 Behind Closed Doors
As a final example, I shall cite the argument made by James D’Angelo that the combination of public voting in Congress and huge private contributions to election campaigns has undermined American democracy, by enabling lobbyists to verify that a representative they have funded votes the way they want.Jon Elster 2015 Secrecy and Publicity
The fragmented power game, fostered by the [1970s reforms], played into the hands of lobbies. It not only helped AIPAC block President Reagan on Arab arms deals, but the more open power game enabled the bank lobby to resist a tax law backed by the president and leaders of both houses of Congress, by stimulating such a popular groundswell that congressional members turned against their political leaders. The parties used to provide the most essential organization, money, and endorsement that politicians needed. Parties and their leaders weighed the competing demands of interest groups, sorted out priorities, struck compromises and then provided what politicians call “cover” for the votes of individual Congress members: taking the political heat for unpopular votes and delivering bad news to groups that were not satisfied.Hedrick Smith 1988 The Power Game - How Washington Works
Writing in 1929, in terms foreshadowing today's literature, [Pendleton] Herring pointed to changes in Congress that invigorated group activity and altered the scope and methods of lobbying. In particular, he cited the reform of rules of procedure in the House of Representatives in 1911 that broke up the power center and distributed control more generally in the House; he also pointed to the adoption, at about the same time, of open congressional committee hearings as being a spur to group activity (Herring, 1929, pp. 41-43). Kay Lehman Schlozman & John T. Tierney 1983 More of the Same: Pressure Group Activity
Indeed, in the days when Appropriations committees saw their mission as cutting spending rather than maximizing it, appropriators carried out virtually all of their activities, including hearings, behind closed doors… William Natcher, D-Ky., closed his markups after taking over the Labor-HHS Subcommittee in 1979, arguing that it would be too difficult to put together a fiscally responsible bill if special interests could record how every member voted on every amendment. The temptation to vote yes on everything would be too great.George Hager 1991 Behind Closed Doors (CQ Magazine)
You will not find it in political science textbooks, but it is nonetheless an immutable truth that, before an audience of reporters [when the committees are open to the public], politicians just can’t shut up. Somehow, even a Congressman whose every utterance is religiously ignored feels compelled to talk endlessly as long as a single soul sits suffering at the press table.Norman C. Miller 1971 Here is a Reform We Do Not Need
Yet, transparency has a dark side that, ironically, has everything to do with a lack of mystery, shadow, and nuance. Behind the apparent accessibility of knowledge lies the disappearance of privacy, homogenization, and the collapse of trust. The anxiety to accumulate ever more information does not necessarily produce more knowledge or faith. Technology creates the illusion of total containment and the constant monitoring of information, but what we lack is adequate interpretation of the information. In this manifesto, Byung-Chul Han denounces transparency as a false ideal, the strongest and most pernicious of our contemporary mythologies.Byung-Chul Han 2012 The Transparency Society
Republican Senator Ben Sasse 2022 - How Televised Hearings Drive Partisanship and Jackassery
Those who pay closest attention to markup sessions are lobbyists who use the occasion to press for changes the serve their interests.Joseph Bessette & John Pitney 2011 American Government and Politics
If you judge the committee’s work by the bottom line, they have a pretty good case for closing. It’s hard to close loopholes when there are lobbyists in the room.Robert S. McIntyre 1983 Citizens for Tax Justice
The Paris outcome was made possible by the heavy use of secrecy. The agreement is a composite mélange of building block pieces, many of which were negotiated in secret over the two weeks and preceding months. Secrecy is common in diplomacy, but the French finessed it to a new level – and with compelling efficacy.Radoslav S. Dimitrov 2016 The Paris Agreement on Climate Change: Behind Closed Doors
We argue that making lawmakers more accountable to the public by making it easier to identify their policy choices can have negative consequences… Lawmakers who would do the right thing behind close doors may no longer do so when policy is determined in the open.Justin Fox 2006 Government Transparency and Policymaking
Lawmakers desiring more closed committee work sessions do not lack variety in their criticism of the new openness: more partisan behavior, too much political speechifying, unusually blatant lobbying, temptation to refrain from discussing radical alternatives.CQ Quarterly 1976 Should congressional work sessions be open to public?
Keeping an accurate vote count is one of the hardest but most important aspects of a congressional legislative fight.Jack Abramoff 2011 Capitol Punishment
Note: Abramoff, one of the most infamous lobbyists talks about how knowing the vote totals (because they are public and countable) is essential.
Even transparency deserves a critical look. Hill rags and Internet gossip sheets now cover incremental legislative updates, with a focus on process, which is ugly and easily distorted for partisan gain. Leaked comments and proposed deals often stymie negotiators.Alex Seitz-Wald 2013 Washington’s Bad Old Days Worked Better Than the Good New Ones
Voters are the subject of every kind of mass appeal and mass flattery by those who want their votes. In such circumstances, the inflexibility which open negotiation encourages is apt to harden into complete rigidity.Lester B. Pearson 1955 Democracy in World Politics
Harvard Talk 2016 - Pitfalls of Congressional Transparency
We wouldn’t have had 150 amendments to the energy bill if the lobbyists hadn’t been in there – we’d only have had 10 or 15.Rep Harley Staggers (D-WV) 1973 Government in the Sunshine
At a public session, NPR found that plenty of lobbyists were lined up for seats. The reason for the great interest is a little surprising. One lobbyist explained “There’s an obsession with intelligence gathering-whether it’s right or wrong-that’s what clients want.” These limitations were made clear when lobbyist Gerald Cassidy told the same publication: “During my 42 years in Washington, this is the most closed-mouth committee that I’ve seen.” If they were hard pressed to find information about the Super Committee’s legislation, it seems unlikely that they would have been able to score any special deals or advance any untoward interests… It seems secrecy could have allowed the panel to produce a good bill.Mark Strand and Timothy Lang 2011 The Super Secret Committee
But people close to the process say the velocity of the soundbite culture on Capitol Hill has forced the real action to go behind the scenes, where controversial ideas can be floated, discussed, and digested without becoming the target practice for pundits on cable news and, in turn, outside groups looking out for their interests.Patricia Murphy 2011 Congressional Secrecy
“It’s easier to bully politicians than to bully voters” Jim Kessler replies. Recalling that the Manchin-Toomey bill to expand background checks got 55 votes in the senate but fell short of the 60 needed to overcome a filibuster, he says, “If there were a secret ballot in Congress, these gun laws would pass. But there isn’t, and the NRA takes retribution.” Eleanor Clift 2014 NRA Ducks Gun Fight Out West
Probably when you close the doors in the Chamber of the House and the TVs go off, these guys are actually sitting down and being professionals and trying to get things done.Dr. John Cowan 2021 Who elected Marjorie Taylor Greene?
The Constitution prohibits even the possibility that Representatives who will, in the course of voting for the President, have to change their minds. should ever come under the control of those who can apply power. The Constitution does not allow, in this all-important personal vote with its many human-nature overtones. that a Representative be compelled to vote openly, and in so doing take the risk of offending on the one hand, or gaining the political debt on the other, of the next President of the United States.Laurence G. Kraus 1964 Illigitimate Power - The History of the Secret Ballot in Congress
The open meetings rules of the last ten years have lowered some barriers separating Members from group pressures. Lobbyists now attend markup sessions and conference committee sessions that used to be held in closed session. In this respect, Members are no longer as insulated from lobbyists as when they were able to conduct official business behind closed doors, and pressure groups are better able to hold Members accountable for their actions.CRS Report 1986 Congress and Pressure Groups
In approaching the typical member, a pressure group has no need to tell him outright that future political support or opposition depends on how the member votes on a particular bill or whether, over a long period, the member acts favorably toward the group. The member understands this without being told. The member knows that when the vital interests of some group are at stake, a vote supporting those interests normally would win the group’s friendship and future support, and a vote against them would mean the group’s enmity and future opposition.Congressional Quarterly 1982 The Washington Lobby
Chuck Schumer 2021 - Secret Ballot Voting in Congress
February 2021, Chuck Schumer became the first Senate Majority leader in the history of the United States to publicly discuss the benefits of a secret ballot vote in the Senate to prevent intimidation. This was during the 2021 Senate trial on the impeachment of President Trump. Yet by claiming that the Senate can't have a secret vote, he makes a fundamental mistake. Article I, Section 5 allows 1/5th of Senators to insure that the vote is put in the ‘Journal,’ but that Journal is then controlled by a simple majority, and they can then decide to keep it secret indefinitely. In some cases, the Journal has been kept secret for decades. See Howard Baker citation below.
Congressional dysfunction started well before the Trump presidency. It has been growing for decades, despite promise after promise and proposal after proposal to reverse it. Many explanations have been offered, from the rise of partisan media to the growth of gerrymandering to the explosion of corporate money. But one of the most important causes is usually overlooked: transparency. Something usually seen as an antidote to corruption and bad government, it turns out, is leading to both.James D’Angelo & Brent Ranalli 2019 The Dark Side of Sunlight (Foreign Affairs Magazine)
Transparency undermines expertise in a significant way, because it confines experts using the kinds of reasons that nonexperts can understand. But if you think about it for a second, you should realize that a lot of expert reasoning is by its nature, incomprehensible to the public.C. Thi Nguyen 2021 Transparency is Surveillance
The [impeachment] trial of the president, including testimony of 25 prosecution and 16 defense witnesses, became a public spectacle as well as a constitutional crisis. It gave the grand orators of the Senate a chance to dazzle the public with their speaking skills, and the trial was conducted mostly in open session before a packed gallery. During final deliberations on the 11 articles of impeachment, however, the Senate cleared the gallery and closed the doors.US Senate Archives 1868 Impeachment Trial of President Andrew Johnson
When one compares what the Freedom of Information Act was in contemplation with what it has turned out to be in reality, it is apparent that something went wrong. The act and its amendments were promoted as a means of finding out about the operations of government; they have been used largely as a means of obtaining data in the government’s hands concerning private institutions. They were promoted as a boon to the press, the public interest group, the little guy; they have been used most frequently by corporate lawyers.Anton Scalia 1982 The Freedom Of Information Has No Clothes (FOIA, Exectutive)
Thus, immunity for the confidential communications of legislators is even stronger than that of the husband-wife privilege. The latter privilege only prevents a spouse from testifying regarding a confidential communication with another spouse. The legislative privilege defined in Gravel bars any witness from testifying to the communications between legislators and their aides relating to their legislative acts. Moreover, the Court’s language in Gravel broadly grants immunity from questioning as to “communications,” without restricting it to confidential communications, as in the case of spousal immunity. Finally, it should be noted that the immunity provided is against any prosecution, civil or criminal, for “all things generally done in a session of [Congress],” and not merely a testimonial privilege. What public policy underlies such a broad grant of immunity from questioning in any forum for any purpose as to “all things generally done” by legislators in the course of legislative business, including communications with fellow legislators or aides? The policy is designed to foster the Congress’ purposes; it is intended “to prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary.” The rule of legislative privilege is designed to ensure “the independence of the legislature;” it protects legislators “from deterrents to the uninhibited discharge of their legislative duty.”Edward J. Bloustein 2004 Individual and Group Privacy
Every week the Legal Times of Washington runs a page or more of notable new FOIA filings – mostly to enable corporate lawyers to find out what it is that other corporate lawyers are trying to find out. The necessary training for any big-time litigating lawyer now includes not only the cross-examination of witnesses, but use of the Freedom of Information Act. In short, it is a far cry from John Q Public finding out how his government works.Anton Scalia 1982 The Freedom Of Information Has No Clothes (Executive)
Yes, it’s obvious that senators behave differently when an election is around the corner... we saw senators voting differently, drafting different types of bills, wondering and worrying more about how actions in DC would go over back home. Senators act as if voters care about the recent past, with the emphasis on recent.Garret Jones 2020 10% Less Democracy
New York Governor Andrew Cuomo’s push for same-sex marriage has been largely behind closed doors, a strategy that cedes to gay rights groups the loss that will result if legislation fails this year.Reuters 2011 Cuomo push for same-sex marriage behind closed doors
It would be hard to bring stability to anything so dynamic and open. It turns out that in any system, of these three characteristics – open, fast, stable – you can have only two. An open and fast system, like the world we live in, will be inherently unstable. A fast and stable one will tend to be closed, like China. If the system is open and stable, it will likely be sluggish rather than dynamic. Think of the nineteenth-century Austro- Hungarian and Ottoman empires: vast, open, diverse—and decaying. This “trilemma” is an adaptation of an idea of Jared Cohen’s, the technologist, who observed that computer networks must choose two of three qualities: openness, speed, and security. Economists have their own version of this idea, the “policy trilemma,” which posits that countries can have two of the following three: free-flowing capital, independent central banks, and a fixed exchange rate. They’re a bit wonkish, but all these trilemmas get at a simple notion—if everything is open and fast-moving, the system can spin dangerously out of control. Fareed Zakaria 2020 Ten Lessons for a Post-Pandemic World
Just as no private citizen or business entity can conduct its business under constant public scrutiny, so judges, legislators or executive officials cannot conduct all public business at every step of the way in public. A considerable part of Government business relates to the formulation of policy and to the rendering of advice to the President or to agency heads. Inter-departmental memoranda, advisory opinions, recommendations of subordinates, informal working papers, material in personnel files, and the like, cannot be subject to disclosure if there is to be any orderly system of government. This may be quite frustrating to the outsider at times. No doubt all of us at times have wished that we might have been able to sit in and listen to the deliberation of judges in conference, to an executive session of a congressional committee or to a Cabinet meeting in order to find out the basis for a particular action or decision. However, government could not function if it was permissible to go behind judicial, legislative or executive action and to demand a full accounting from all subordinates who may have been called upon to make a recommendation in the matter. Such a process would be self-defeating. It is the President, not the White House staff, the heads of departments and agencies, not their subordinates, the judges, not their law clerks, and members of Congress, not their executive assistants, who are accountable to the people for official public actions within their jurisdiction. Thus, whether the advice they receive and act on is good or bad there can be no shifting of ultimate responsibility. Here, however, the question is not one of nondisclosure as to what was done, but rather whether the preliminary and developmental processes of arriving at a final judgment need to be subjected to publicity. Obviously, they cannot be if Government is to function.US Attorney General William P. Rogers 1958 The Papers of the Executive Branch
All persons agree that information which would adversely affect our national security should not be disclosed. Then too there are compelling reasons for non-disclosure in the field of foreign affairs, in the area of pending litigation and investigations which may lead to litigation, information made confidential by statute, investigative files and reports, and, finally, information relating to internal government affairs.US Attorney General William P. Rogers 1958 The Papers of the Executive Branch
Many of my colleagues in the newspaper business have leaped to the conclusion that all public affairs, not directly connected with national defense, must be conducted in the open… I disagree. I think that much of the important business in a Republican form of government will be carried on behind closed doors. I see few dangers in that. I see many advantages. For it is only behind closed doors … that most politicians – yea, even statesmen – honestly express their views and try to get at the meat of the question. I don't mean to imply that legislative voting should not be in the open, nor that the public should be denied the right to appear before all committees, nor that any legislator should be excused from explaining why he voted as he did. But I do mean that… in the National Capitol, the White House, and various Washington departments no sound policy is decided upon without frank exchange of views. And a frank exchange of views is rarely reached with the public and the press looking over the shoulders of the policy makers. The Government of Athens was an absolute and complete democracy, with all deliberations carried on in a goldfish howl of open debate. But Athens became smothered with oratory, paralyzed with demagoguery, and finally wound up with such an unstable mobocracy that nearly every able Athenian was banished from the land.Jenkin Lloyd Jones 1957 The Executive’s Right of Privacy
Note: remarks of Jenkin Lloyd Jones, formerly President of the American Society of Newspaper Editors, quoted by Attorney General William P. Rogers in Constitutional Law: The Papers of the Executive Branch, 44 A.B.A.J. 941, 942 (1958)
The picture of Athenian democracy seems like a caricature of all democratic government. How could a mob thus collected decide questions of State policy? Home affairs must have been difficult enough to deal with in an Assembly where conflicting interests were personally represented; but what when it came to foreign policy? No room for fine diplomacy here. The Government of Athens bawled its intentions on the hill-top, and then wondered that its schemes were sometimes forestalled by its neighbours.Ellen Sophia Hodgkin Bosanquet 1914 Days in Attica (Greek Democracy)
With the public and interest groups firmly opposed to most of the major options on the dedistributive agenda, Congress and the President are well advised to build pre-negotiated packages outside the constitutional system, returning to the normal process only at the last moment… The opportunity for closed-door negotiation needs to be returned to Congress.Paul Light 1985 Artful Work - The Politics of Social Security Reform
[Romney] claimed most [Republican] party leaders share [a negative] view of the former president [Trump], but few will voice it in public. “I don’t see new people standing up and saying, ‘I’m going to do something here which may be politically unpopular’ — in public at least,” Mr. Romney said.Jonathan Martin 2022 Inside McConnell’s Campaign to Take Back the Senate and Thwart Trump
Following a decade of reform, Congress must now work in the sunshine. As Congress opened its working to the public and interest groups, the smoke-filled rooms began to disappear. Unfortunately, so did many of the closed rooms that are so important to legislative action. Under the hot lights of television, with every word in a transcript and every vote on the record, members of Congress became less willing to take a stand on painful issues. And with so many open meetings, leaders had fewer chances to sit down and talk.Paul Light 1985 Artful Work - The Politics of Social Security Reform
A rules change in 1975 opened all Senate committees to the public. This move provided interest groups and the news media more information with which to influence and report on the chamber’s deliberations. This significantly altered the legislative environment by making compromise more difficult. James Wallner 2013 The Death of Deliberation
It was pointed out…that it would be impossible to have any frank discussion of legal or policy matters in writing if all such writings were to be subjected to public scrutiny. It was argued, and with merit, that efficiency of Government would be greatly hampered if, with respect to legal and policy matters, all Government agencies were prematurely forced to “operate in a fishbowl.”Supreme Court 1973 Exceptions to FOIA
The issue is really how much transparency, and what kind, should apply to different aspects of government. Good, open government is not the same as a reality television show, broadcasting every move officials make and every conversation they have. On the contrary, good government actually requires certain limits on transparency.Cary Coglianese 2009 Seeing through the transparency myth
The reason we originally did not release this list had nothing to do with some grand Soviet-style conspiracy. Rather, we were trying to be kind and fair to people who gave up three months of their lives to help devise health-care policy. We didn’t want to subject them to the assault of lobbyists, special interests and the enthusiastic Washington press corps.Robert Pear - Quoting Robert O. Boorstin 1993 Ending Its Secrecy, White House Lists Health-Care Panel
Historians note that the expectation that government proceedings must be fully open is relatively new and that the government’s founding document — the Constitution — was drafted in secret behind guarded doors. “There is clearly strong precedent for the use of secrecy in at least some phases of the deliberation,” said David Pozen, a law professor at Columbia Law School who has studied the issue. “That seems eminently defensible as long as it is buffered by transparency at the outset about the charge and transparency at the back end about the ultimate outcome…maximal transparency is not always conducive to honest and healthy deliberations.”Carl Hulse 2020 NY Times – Impeachment Out Of Public View
The low level of transparency allows the representatives that are actually involved in policy development to accept compromises that would be difficult to defend under full disclosure of negotiation details.Cornelia Woll 2012 The brash and the soft-spoken
As Naurin (2004) has demonstrated, differences in transparency greatly affect lobbying behavior in a way that might be counter intuitive. Lobbyists do not necessarily behave ‘better’ when their activities are public, even though transparency may decrease outright corruption. But transparency also influences how much lobbyists feel accountable to the members or the groups they represent. Government representatives of associations or firms have a dual role of trying to influence the policy process and informing the group they work for of their progress.Footnote14 When transparency is low, representatives can be constructive and willing to compromise, because they do not fear to be sanctioned by their members or clients for going beyond their mandate (see also Stasavage, 2004). Such cooperation may allow continued influence, but decreases the likelihood of obtaining what one set out for in the beginning. When transparency is high, by contrast, a representative has little choice but to repeat the very narrow policy stance that was internally negotiated by the collective or firm he or she represents. High transparency thus reduces the room for cooperation among multiple stakeholders.Cornelia Woll 2012 The brash and the soft-spoken
MCEVERS: Could you give us an example of a major piece of legislation that was drafted during this time in secrecy without any public debate?
ZELIZER: Well, the Medicare legislation was passed in 1965. It’s the first major health care program that we have. The heart of legislation was worked out in the House in the ways and means committee where the chairman, Wilbur Mills, a Democrat from Arkansas, basically took an administration proposal that had been the subject of hearings, took it behind closed doors and totally transformed the bill, turning it into what we have today. And even Lyndon Johnson didn’t know exactly what was going on until one of his staffers who was in the room reported to him what the House had actually done to it. And the bill is considered really watershed legislation.Julian Zelizer 2017 Congress Has A Rich History Of Legislating In Secrecy
In the closed room of the committee, shrouded by secrecy, without interest groups or reporters present, a hallmark of this insular era in congressional politics, and with most members deferring to his expertise, Mills systematically knocked out almost every Senate amendment that increased costs, and he shifted specialist services from the mandatory to the voluntary section of the program, thus protecting the Social Security tax and reducing the number of doctors who could complain that they were included in the mandatory program. Larry O’Brien said, “There was nobody in that conference who was going to buck Wilbur Mills on the House side and probably there was little appetite to buck him on the Senate side either.”Julian Zelizer 2015 Fierce Urgency of Now
But now, after what had happened in the closed rooms of Ways and Means, things would be different. The federal government would be the insurer of first resort for the nation’s elderly and indigent citizens. The right to health care for the elderly and the poor had been enshrined through the Great Society.Julian Zelizer 2015 Fierce Urgency of Now
When the Senate first met, there was an assumption that they would be a closed body and that they would meet in secret. And we’ve had a battle really since the founding through today of the tradeoff between that secrecy that some people think is required for good governing and transparency and accountability which many people think is equally important for our democracy to work.Julian Zelizer 2017 Congress Has A Rich History Of Legislating In Secrecy
Note: Zelizer seems to present the debate between secrecy and transparency as a popularity contest. But as an academic he should know better. This is very good work, even mathematical, to show that increased legislative transparency leads to a bad form of accountability (as it gives more power to the powerful).
A lobbyist for the U.S. Chamber of Commerce cautioned that open conference sessions could disrupt needed negotiations. “Compromise could be a little more difficult to come by. If you put a flock of Ralph Naders, John Gardners, or Sierra Clubbers in a conference room… it will make some conferees sweat.Lobbyist 1976 Reform Penetrates Conference Committees
Note: In 1990 Sen George Mitchell pushed through the Clean Air Act Amendments – one of the most powerful pieces of environmental legislation in history – by moving his committees into secret meetings. He did so, apparently, to reduce the pressure of the environmentalists who were unable to compromise.
Access is vital in lobbying. If you can’t get in your door, you can’t make your case.Jack Abramoff 2011 The ‘Lobbyist Safecracker Method’
Note: This citation pairs well with one by Lee Drutman who, when talking about lobbyists cites an old Washington adage which states “If you are not at the table, you are probably on the menu.”
Is it possible to have too much transparency? The answer is clearly yes: demands for certain kinds of transparency have hurt government effectiveness, particularly with regard to its ability to deliberate.Francis Fukuyama 2015 Why Transparency Can Be a Dirty Word
Markets and states are likely to “capture” transparency arrangements for their own goals more frequently, which will not necessarily be aligned with the original normative ideals of democracy and participation. Transparency is marketized and monopolized to gain power and profits, it is used as a form of public relations in symbolic politics, it functions in disinformation and information overflow campaigns, it is part of state and market surveillance of citizen-consumers, and it can further empower the powerful as much as the powerless.Arthur P.J. Mol 2014 The Lost Innocence of Transparency in Environmental Politics (Climate)
Lobbyist Gary Hymel stated that C-SPAN cuts his office workload in half. “We don’t have to go to the House and try to keep a mental note of what’s going on… When a bill is being debated on the House floor… we take notes, eat lunch, and drink coffee, and tape it for a permanent record.”Stephen Frantzich & John Sullivan 1996 The C-SPAN Revolution
Open mark-up sessions had limited the scope of discussions. Members, mindful of press coverage, hesitated to discuss the more extreme alternatives on the full gamut of possibilities. In decision making you can never rule out your options before you start. You have to at least consider the ridiculous extremes. Some moderate, workable approach may come out of what seemed an extreme.Sen. John Glenn (D Ohio) 1975 CQ Quarterly - Open Committees
In the “age of impeachment,” there is a tendency for “We, the people” not to reason but to intimidate and threaten with political retribution. Is there a way to mitigate this party-induced bias? Yes, the secret ballot (in Congress).Douglas Kmiec 2020 Impeachment trial could use a secret ballot
The Senate rules regarding the conduct of an impeachment trial, including ballot secrecy, require a simple majority (though a two-thirds majority is required for conviction). Yes, a provision (Art. I, sec. 5) authorizes either chamber in general lawmaking to make public the “yeas and nays” if one-fifth of those present so desire. This provision, however, is subordinate to the specific constitutional provisions on impeachment, including that the “sole power to try impeachments” belongs to the Senate. The Supreme Court has made plain that it will not second-guess the rules and procedures the Senate adopts, absent an egregious disregard of due process — which a secret ballot aimed at facilitating the ability of the Senate jurors to follow their conscience free of intimidation clearly is not. Douglas Kmiec 2020 Impeachment trial could use a secret ballot
Note: A number of people speculate about whether Article I, Section 5 permits a secret ballot vote in Congress, and if so for how long. Well, surprisingly the constitutional text, though dated, is fairly clear and wildly permissive of secrecy. Article I states (in its entirety): Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the yeas and nays of the Members of either House on any question, shall, at the desire of one fifth of those present be entered on the journal. ------ The final phrase is key in that it calls for the printing of the yeas and the nays - which in the Framers’ time was not a printing of the names of the members who voted and their votes, but instead just the final counts – how many people voted for each side. So while this clause requires that the votes shall be printed, it does not require names to be attached to each vote. Further the first phrase allows for Congress to hold the Journal until they decide to publish it, which even the Framers’ day and age could mean up to fifty years of delay (as in the case of Madison publishing the notes of the 1787 convention in 1826.
How then to neutralize the organizational advantages of clientele groups in reform debates?… This often requires skillful manipulation of the procedural setting in which policy decisions are made. If open meetings are filled with lobbyists, then meetings can be closed.Eric Patashnik 2018 Reforms at Risk
Tax reform coalition leaders adopted procedural strategies to mask legislators’ individual responsibility for closing inefficient loopholes favored by powerful clientele groups. Leaders met in secret, avoided recorded votes, and adopted restrictive rules to prevent emasculating amendments, giving lawmakers the opportunity to vote for a major tax bill that offered significant rate reductions to average citizens.Eric Patashnik 2018 Reforms at Risk
There is a tension between competing values in legislating. And I think one might be transparency and deliberation. A lot of the folks who study deliberation will make the argument that it’s necessary to have some degree of secrecy, it’s necessary to be able to meet behind closed doors and have candid discussions and reach agreements outside of the spotlight. Well that is at odds with our desire for transparency and to know everything that’s going on at all times and for it to be blasted out over social media. So in some ways though those competing values – the demand for increased transparency may very well be one of the reasons why deliberation has become harder, because as soon as a member of strays from an established position, that becomes broadcast everywhere.Peter Hanson 2017 Legislative Branch Capacity Working Group
The story of the passage of the [1970 Clean Air] Act would likely surprise even well-informed students of environmental legal history: many of its most important provisions were the product of tobacco-smoke-filled, closed-door deliberations filled primarily with decided nonenvironmentalists. In fact, some of its most significant innovations, such as national standards, came from the conservative Nixon Administration itself. Furthermore, the dedicated early enforcement of the Act, which made it legitimate and lasting, came by the hands of Nixon-appointees.Brigham Daniels, Andrew P. Follett & Joshua Davis 2020 The Making of the Clean Air Act (Climate)
The different incentives when an audience is watching have counterintuitive implications that extend beyond analyzing a shutdown. Consider government transparency, or so-called “sunshine laws.” These have benefits, but they may also have downsides: By introducing an audience to the dealmaking of government, we also introduce new possibilities for breakdown — by pandering to or performing for that audience, the bargainers may fail to reach a deal. Similar arguments were made for the secrecy of the proceedings of the 1787 Constitutional Convention; the public didn’t see anything of the Constitution until after the convention had concluded. If Trump and the Democratic leadership could be truly alone in a room, or even a car lot, perhaps the outcome would be quite different. But in Washington, D.C., today, chock full of cameras and reporters, bargaining continues to fail, and the federal government remains partially shut down.Oliver Roeder 2019 We’re all to Blame for the Shutdown
Our private hearing was much more constructive than the public hearing. Public hearings are a circus. That’s why I don’t like to do them. I mean, it’s a freak show.Rep Trey Gowdy (R-SC) 2018 Face the Nation
Republican Senators Conrad Burns (R-Mont.), Chuck Hagel (R-Neb.) and Frank Murkowski (Alaska) worried that senators would play to the television cameras and that would affect the debate. John McCain (R-Ariz.) called it “partisan posturing.” Republicans such as Mitch McConnell of Kentucky thought senators “are more reasonable” in a private setting. Robert Bennett (R-Utah) felt “a whole lot more comfortable” without the TV coverage.Marjorie Cohn 2000 Open-and-Shut: Senate Impeachment Deliberations Must Be Public
Many senators congratulated themselves for the high level of discourse in the secret deliberations. This sentiment was underscored by Chief Justice Rehnquist at the end of the trial: “I have been impressed by the quality of the debate in closed session on the entire question of impeachment as provided for under the Constitution.” Marjorie Cohn 2000 Open-and-Shut: Senate Impeachment Deliberations Must Be Public
Donald Trump met his match, again, Wednesday on Capitol Hill: secret ballots. “Having outsiders meddle in insider elections never goes well,” said John Feehery, a GOP consultant who served as a leadership aide for 10 years. “And Trump is the ultimate outsider, and, frankly, most members don’t like him very much.” Trump has far and away more endorsements than any other 2024 Republican presidential contender, but by early September that total represented only about a third of the House GOP caucus. Many of the remaining Congress members would prefer a different nominee but are too afraid of the ex-president’s wrath to get behind another political horse. But Massie said the public nature of the slow-rolling, alphabetical roll call on the House floor might give some members pause about voting for Scalise, with outside pressure potentially turning people away. “I went into this thinking that Jordan has more public support,” Massie said. “Scalise has more private support.”Paul Kane 2023 Trump-backed hopefuls face tough foe in leadership races: Secret ballots
One month before the impeachment deliberations began, Senate parliamentarian Robert B. Dove had told an interviewer, “Deliberations in an impeachment trial are never open.” ... One of those 19th century rules that opened each day’s trial session in the Clinton case, was the admonition of the sergeant at arms: “All persons are commanded to keep silence, on pain of imprisonment.”Marjorie Cohn 2000 Open-and-Shut: Senate Impeachment Deliberations Must Be Public
In a regime of secrecy, interest groups cannot observe legislators expending effort on their behalf. They can thus never be sure the legislator has carried out her end of the bargain. Knowing this, the interest group is unlikely to enter a bargain in the first place. Opacity thus eliminates one source of political inequality, as it renders a legislator unable to credibly commit to fulfilling her side of an exchange.Brian Kogelmann 2021 Secret Government: The Pathologies of Publicity
The secrecy of modern-day jury deliberations is well-settled in most jurisdictions. In judicial proceedings, the deliberations have been closed to the public, and indeed to television cameras, except in tightly controlled experiments by CBS and PBS. The workings of the early jury were described by William S. Holdsworth as “divine.” He wrote, “when the jury was first introduced the method by which it arrived at its verdict inherited the inscrutability of the judgments of God. Benjamin Cardozo worried in 1933, “Freedom of debate might be stifled and independence of thought checked if jurors were made to feel that their arguments and ballots were to be freely published to the world.”Marjorie Cohn 2000 Open-and-Shut: Senate Impeachment Deliberations Must Be Public
[During the 1986 Tax Reform] Policymakers were able to overcome opposition to compromise and reach a deal. They did this by using private negotiations. The committees resorted to convening in private no less than three times during the 1986 negotiations. In the House, they met in a closed-door weekend session to hammer out the final compromise bill. In the Senate, a few key members met in secret to develop a final proposal for the committee over a weekend after having specifically, and publicly, promised no action on the bill. Sarah E. Anderson, Daniel M. Butler, Laurel Harbridge-Yong 2020 Rejecting Compromise: Legislators’ Fear of Primary Voters
The open hearings and mark-up sessions encouraged by the reform movement were one example of the changed environment. In 1973, some 30 percent of committee meetings were closed to the public, but in 1975 only 2 percent were closed. Lobbyists and special interest representatives took advantage of open meetings to press their cases. As one member of the committee observed, “Open meetings put special interests into the process and gave them an active input.” Another member commented disapprovingly that at one markup session, several members of the committee “went down and sat in the audience and talked with a specific interest and wrote an amendment, came back up and offered it.” Donald R. Kennon & Rebecca M. Rogers 1989 Ways and Means a Bicentennial History 1789-1989
Closed meetings facilitate getting the House’s work done, and public sessions often turn into wastes of time.Rep. Omar Burleson 1957 Advocates of Openness
Note: This citation, from a member of Congress, takes place a decade before Congress opened all its committees.
If President Obama and House Speaker John Boehner's closed-door meetings aimed at solving the fiscal cliff crisis trouble anyone, you'd expect it to be the open-government watchdogs who routinely bark their outrage at public officials who work overtime to avoid public scrutiny. But Obama and Boehner's secret meetings (they held another at the White House on Monday) and one-on-one phone calls have been the case of the watchdogs that haven't barked. Open-government advocates aren't necessarily troubled by the closed meetings — unlike, say, conservative anti-tax activist Grover Norquist, who has inveighed against Obama holding talks behind closed doors. Let's be realistic, government-transparency advocates say: It stands to reason that sometimes leaders need to meet privately to reach an agreement.Frank James (NPR) 2012 Open-Government Watchdogs OK With Closed-Door Fiscal Cliff Talks
The increase in transparency brought two marked changes: a substantial increase in the number of issues debated, and a seismic increase in what is euphemistically known as "messaging.” James D’Angelo 2019 Transparency is a Weapon
There are situations – and they are sometimes the most difficult and most important ones where such highly publicized meetings offer the least promising of all methods of negotiating. An atmosphere of drama is inevitably generated when the spotlights of all the world are focused… Such an atmosphere may well be a public relations officer’s dream, but a negotiator’s doom.Lester B. Pearson 1955 Democracy in World Politics
The “Non-Markups.” Prior to the “sunshine” reforms of the early 1970s, Congress typically developed legislation in closed committee sessions with attendance confined to members, their staffs, and invited executive branch officials. The Trade Act procedures made it possible to turn back the clock, to return to this earlier, easier way of doing things. Meetings on trade implementing legislation were, in form, advisory – it was the administration, under the Trade Act of 1974, that controlled the language of the implementing bill on which Congress would act. So they were not directly governed by the procedural reforms which applied to regular legislative business. And both congressional and executive branch participants preferred closed sessions, for they rendered the issues politically more manageable for the committees, and for STR as well.Allen Schick 1981 (edited Norm Ornstein & Thomas Mann) The New Congress
We have now had a half-century of experimenting with more open processes. How is that working out? When greater transparency in Congress arrived in the 1970s, did that mean special interest had more power or less? There’s a simple (if imperfect) test. If special interests had less power, then it would not have been worthwhile to invest as much in lobbying, so more transparency should have been followed by a reduction in lobbying. Of course, the reverse is what actually happened: Lobbying rose dramatically in the 1970s, and has risen further since then. Apparently, greater political openness makes spending on lobbying more worthwhile, not less.Timothy Taylor 2019 When Special Interests Play in the Sunlight
Well, going back to the seventies and opening up committees, who attends? You try to reach out to a broad public, but the people who show up are the people who have a stake in the outcome. And so as we open up committees what that opens Congress up to, is more pressure from organized interests, because they’re the ones with the strongest incentive to pay attention. And so you want to reach your constituents, you want to reach that broader audience, but most Americans are not that tuned into public affairs. And we don’t want to ask too much of that of that broad public. And as we try to reach out and make the system more representative and more accountable, we wind up making it less representative – and accountable to organized groups as opposed to that broad public.Frances Lee 2019 Select Committee on the Modernization of Congress
Lobbyists and journalists report an increasing use of C-SPAN for monitoring the political process. During the early C-SPAN era, when Washington, D.C . lacked cable service, lobbying organizations dominated the list of subscribers to Capitol Connection. Today C-SPAN plays continuously in the background in most lobbying offices. As one trade association lobbyist pointed out: “I sit in my office every morning, watching C-SPAN.”Stephen Frantzich & John Sullivan 1996 The C-SPAN Revolution
A low level of deliberative quality under conditions of publicity involves what Chambers calls “plebiscitory reasoning” in which “arguments… become shallow, poorly reasoned, pandering, or appeal to the worst we have in common.” By contrast, behind closed doors, where pressures of public opinion are reduced and other governing logics, deriving from the possibility of agreement, set in, we can expect other deliberative virtues – such as some open-mindedness as well as listening and respect – to flourish more fully. André Bächtiger & Simon Beste 2017 Deliberative Citizens, (Non)Deliberative Politicians: A Rejoinder
As Brent Ranalli, James G. D’Angelo, and David C. King have argued, when Congress made the votes on committees public, they empowered lobbyists to contract more effectively with members of Congress – or at least to monitor and pressure them more effectively. When the votes were secret, it was hard to know whether a deal was respected. With sunlight, everyone knows who upheld the bargain . That effect thus lowers the cost of contracting; lower the cost and you get more contracting aka, corruption.Lawrence Lessig 2018 America Compromised
Through the open committee hearing, an institution of comparatively recent origin, the lobbyist now is able to speak with authority to Congress for the group or organization he represents. The open committee hearing has worked a revolution in lobbying methods. It has permitted the lobbyist to have access to members of Congress through the front instead of the back door, and has given to the title “legislative agent” something of a professional standing. In the proposal for registration of lobbyists, many of them see a welcome recognition by Congress of the new dignity of their calling and of the importance of the part they now play in the making of legislative decisions.CQ Reports 1928 Changing Character of Washington Lobbies
The dark side of global transparency, sees forces spreading hatred, conflict, and lies. This darker side of transparency is less noted but, unfortunately, it will be at least as influential in the coming decades. Global transparency will indeed bring many benefits, but predictions that it will lead inevitably to peace, understanding, and democracy, are wrong. Kristin M. Lord 2006 Perils and Promise of Global Transparency
Transparency changes the power structures in modem society. The information overload calls for organizational actors who have the relevant resources to process, analyze, evaluate, and act upon the huge amount of information created by transparency mechanisms. Those capacities especially lie with large companies, official auditing bodies, or professionalized non-governmental organizations.Vincent August & Fran Osrecki 2019 Der Transparenz Imperativ
Transparency is a highly problematic tool as it often does not live up to its promises, let alone to the hopes many actors associate with it. Transparency is, under specific circumstances, able to enhance accountability and align the behavior of the watched to external standards. However, it often produces a massive amount of bureaucratization, it reduces efficiency, intensifies distrust, privileges resourceful actors, and thus undermine s exactly those goals it promises to achieve.Vincent August & Fran Osrecki 2019 Der Transparenz Imperativ
One of the earliest rules established by the Convention restrained the members from any disclosure whatever of its proceedings, a restraint which will not probably be removed for some time. I think the (secrecy) rule was a prudent one not only as it will effectually secure the requisite freedom of discussion, but as it will save both the Convention and the Community from a thousand erroneous and perhaps mischievous reports.James Madison 1787 Letter to James Monroe
The 1970s reforms that opened up congressional committees and the House floor have yielded disappointment and dysfunction on a larger scale. Initiated in earnest with the enactment of the 1970 LRA, these reforms are now believed by many to have contributed to an increase in special interest influence and a decline in institutional comity and capacity. The glare of publicity made it more difficult for members of Congress to negotiate with each other in candid, creative, and productive ways; rising levels of partisanship since the 1970s aggravated this difficulty. Lobbyists, moreover, no longer had to wait in the lobby during markup sessions and other committee meetings. While these meetings were in theory thrown open to all, only deep-pocketed outfits were able to send representatives—and to punish or reward legislators based on what the legislators said or how they voted—in any systematic fashion. By the 1980s, members and observers of Congress were routinely asserting that laws like the LRA, “which had opened up committee legislative drafting sessions to the public in order to dilute the power of business lobbyists, had precisely the opposite effect. They enabled business lobbyists to monitor the votes of each elected official more closely.”David Pozen 2018 Transparency’s Ideological Drift
Negotiation benefits from privacy. Yet democrats today cannot have too much of transparency.Jane Mansbridge 2015 Solutions to Polarization (Persily)
(If the Senate deliberations were televised) there would be less attention to legislative work and more to publicity seeking, there would be less time spent in committee and more on the floor, and the Senate floor would become an arena in which to register unrestrained advertisements of self instead of being held in reserve for the occasional registration of intensely held minority opinions and interests.Richard Fenno 1989 The Senate through the Looking Glass - The Debate over Television
The theory that ‘diplomacy should proceed always frankly and in the public view’ has led to negotiation being broadcast and televised, and to all rational discussion being abandoned in favour of interminable propaganda speeches addressed, not to those with whom the delegate is supposed to be negotiating, but to his own public at home.Sir Harold Nicolson 1953 The Evolution of Diplomatic Method
The framing of the Constitution was an occasion for debate, for discussion, and even for discord. And yet, when the hall fell silent and the document was presented in its final form, there was near unanimity. All but a handful of the delegates were prepared to endorse and defend the proposed constitution. To facilitate candor, they had conducted their deliberations in secret, behind closed doors, beyond the purview of the general public.Paul A. Rahe 1994 Republics Ancient and Modern, Volume III
The opening up of the legislative process can make lawmakers much more directly accountable to interest groups whose support they may need for reelection. Lobbyists, after all, now actually sit in on committee markup sessions. This may constrain the policymaking efforts of lawmakers to actions that serve the interests of narrow groups at the expense of the broader public good.Joseph Bessette 1994 Mild Voice of Reason
Many Republicans will say privately that they understand the science, but if they talk about climate change publicly they will prompt a primary challenge from the right — so they stay quiet, at best, or join the obstructionists in questioning the science. There has been no major change in climate science since 1979; what has changed is the politics.William K. Reilly 2018 The Term “Republican Environmentalist” Is Not an Oxymoron
In the ‘70s, when we got the voting machines and we got the damn camera (television in the House)… The camera means that the person who’s rewarded in terms of the viewing audience is the person who gives the most strident, vivid speech…. We’ve lost out a lot with the camera, because it emphasizes combat and drama rather than a thoughtful analysis of issues.Rep. David Obey 2010 Obey surveys House then and now
Former Republican US Representative, Trey Gowdy tells Face the Nation that closed door hearings work far better and public hearings are circus – July 24, 2018
Secrecy allows better governmental decision-making and more effective national security protections and law enforcement.Mark Fenster 2006 The Opacity of Transparency
The primary users of the Freedom of Information Act are not journalists and crusaders seeking to reveal illicit activities; they are businesses seeking to find out what government regulators are up to and what their competitors have disclosed to government agencies. Similarly, Congressional reforms requiring publicly recorded committee votes are not of most use to the news media or constituents; they help lobbyists verify whether targeted officials have lived up to their promises to vote for or against major amendments.Thomas Edsall 2011 Putting Political Reform Right (NYTimes, FOIA)
The reforms of the 1970s helped to facilitate stronger partisanship in Congress, as members used the more open process to score political points against their opponents. By making it easier to force roll-call votes, the reforms made it possible for members to design amendments to embarrass members of the opposing party. Such votes on hot-button issues could then be shared with the campaign committees, so members could claim that their opponents had voted against a balanced budget, for forced integration, and other matters. Similarly, the televising of the House and other transparency reforms of the 1970s were also very useful to a minority party seeking to force its issues into public view. As Republicans seized these opportunities, Democrats adopted more creative procedures to clamp down and restrict opportunities to participate. The feedback loop worked in favor of increasing centralization of power in the leadership. House leaders now govern the House floor with a much heavier hand than they did in the 1970s. In the words of forty-year Republican Congressional staffer Don Wolfensberger, “Every time you have a change in party control, the party in the minority says, ‘If we get in the majority we’re going to be more fair and open.’ They get into the majority, and it’s even more restrictive than it was.”Casey Burgat 2015 Order in the House?
George Washington University political science professor Sarah Binder suggests that increased political gridlock is a direct, yet unanticipated, result of the [sunshine] reforms passed in the 1970s.Casey Burgat 2015 Order in the House?
Most members genuinely want[ed] to do what they thought was in the national interest if they could. That wasn’t always easy to do, however. But it was easier to do before the passage of the Sunshine laws [which required that public business be conducted in the open]. When an interest group came in, you would say, “Gosh darn, I tried to support you. I really did. The chairman bent my arm.” Then, to protect yourself, you would tell the chairman that when those guys came in, to tell them that you really fought hard on their issue.Sen Robert Packwood 2003 Future of Freedom
Do governmental transparency policies generate net positive impacts? What once might have seemed a rhetorical question has now become a point of contention. Scholars and pundits increasingly caution against the unanticipated consequences of transparency and the dangers of too much transparency. Several have even questioned transparency’s positive transformative impact more generally. To a degree, this questioning is as healthy as it is consistent with attitudes and research: from enthusiasm to growing awareness of unanticipated consequences and, now, introspection surrounding transparency’s worth.Gregory Michener 2018 Gauging the Impact of Transparency Policies
“It’s a real dilemma for liberal reformers,” says Jeff Drumtra, director of the Tax Reform Research Group, an arm of Ralph Nader’s Public Citizen organization. “When you look at recent tax bills, the best ones have come out of closed sessions. You take what you can get and hope someday you can get a good bill at an open meeting.”Pamela Fessler 1985 Rewriting Tax Code Behind Closed Doors
One example of how a closed session provides protection from special interests came when the committee voted to give banks even better tax treatment than they now enjoy… In the initial recorded vote, only one Republican member of the panel voted against the more favorable treatment for banks. But when the committee voted a second time and decided to reverse the decision, it did so on a voice vote (secret vote). Neither the public nor the bank lobbyists waiting in the hallway knew who changed sides.Lea Donosky 1985 Tax Reform Behind Closed Doors
Nobody can say what sort of constitution would have emerged if the convention had been open to the public… [But, had] Madison’s notes been published before the states held their ratifying conventions, the Constitution would never have been adopted. The dialogue contained far too much that would have been seized upon by demagogues.Irving Brant 1990 The Constitution and the Right to Know
There never was any legislative assembly without a discretionary power of concealing important transactions, the publication of which might be detrimental to the community.James Madison 1788 The First Amendment and the Public’s Right to Know
But neither Patrick Henry nor George Mason advocated “divulging indiscriminately all the operations of government.” Patrick Henry, the ardent libertarian, acknowledged that “such transactions as relate to military operations or affairs of great consequence, the immediate promulgation of which might defeat the interests of the community, I would not wish to be published, till the end which required their secrecy should have been effected.” Mason further explained: The reason urged in favor of this ambiguous expression was, that there might be some matters which require secrecy.”… Thus, even the two most vociferous advocates of the public’s “right to know” did not entertain the notion that the public’s interest in access to governmental information was unconditional or unqualified. Daniel M. O’Brien 1980 The First Amendment and the Public’s Right to Know
The delegates to the federal and state constitutional conventions recognized the need to balance the public’s “right to know” against the exigencies of informed, efficient decision-making by their representatives. The delegates unanimously agreed that it was both necessary and legitimate for the government to withhold from the public information concerning the negotiation of foreign affairs, treaties and military operations, as well as, on particular occasions, information relating to domestic governance. Early congressional practice adhered to the principle that representative government requires an informed citizenry but not unlimited disclosure or publication of governmental affairs. While the House of Representatives permitted the public to attend its deliberations on May 4, 1789, the Senate did not do so until 1794 and the right of the press to attend proceedings of both Houses was not secured until 1801.Daniel M. O’Brien 1980 The First Amendment and the Public’s Right to Know
The people’s right to know cannot mean that every individual or interest group may compel disclosure of the papers and effects of government officials whenever they bear on public business. Under our Constitution, the people are the sovereign, but they do not govern by the random and self-selective interposition of private citizens.Edward H. Levi 1975 The First Amendment and the Public’s Right to Know
It’s not that you want to ignore the public. It’s just that the lobbyists, the pressure groups, the trade associations – they all have their pet projects. If you put something together in public, the Members are looking over at the lobbyists and the lobbyists are giving the ‘yes’ and ‘no’ signs.Rep Dan Rostenkowski 2002 Too Much of a Good Thing
One major role of politicians is to broker those diverse interests and sensibilities and to arrive at arrangements that bridge differences. This strategy entails negotiation, trading off some interests against others in an attempt to attain a compromise that will be tolerable to a number of interests, though rarely entirely satisfactory to any one of them. To put it another way, it involves the bargaining away of many positions, at least as defined by the interested parties. More often than not, that is possible only when the negotiation takes place protected from the view of the various claimants, each of whom might try to veto any compromise that struck at their publicly defined, “transparent” position. What politicians call ‘‘creative give and take” ideologues or representatives of special interests call “betrayal.” That is why on sensitive matters, the negotiating process is most effective when it takes place behind closed doors.Jerry Z. Muller 2018 The Tyranny of Metrics
By now, the empirical evidence on the deliberative benefits of closed-door interactions seems incontrovertible.Mark E. Warren & Jane Mansbridge 2013 Political Negotiation
In studies of negotiations in the [European Union], Ulbert and Risse (2005) identifed many instances in which negotiators had agreed on controversial passages in papers drafed behind closed doors because in that context, they were able to go beyond their instructions to explore possibilities for compromise.Mark E. Warren & Jane Mansbridge 2014 Deliberative Negotiation
While we often assume more transparent voting rules is a benefit, an examination of those rules and their origins suggests this is not always the case. In one of the few detailed discussions of the origins of recorded voting, Luce (1922) stressed that legislators needed to remain aware of both the costs and benefits of transparency. Such awareness is evident when we consider the substantial observed variance amongst recorded voting rules across history and legislative bodies.Lynch, Madonna & Kisaalita 2018 Broken Record - Transparency, Position Taking and Recorded Voting in the US Congress (from upcoming 2019 book)
[From 1971, CQ article discussing the resistance to opening committees] Public markup sessions are rare. Most committees prefer to write legislation in private for a variety of reasons. Some members believe that open meetings tend to encourage greater posturing and longer speeches for public consumption. Others think committee action is hindered by the necessity of observing formal procedures. One committee, which held open markup sessions in the past but not in 1971, found that the open meetings usually attracted more lobbyists than public.CQ Almanac 1971 1970 Legislative Reorganization Act Has Little Impact
It is important to ask, moreover, who benefits from the constraints imposed by openness. Theoretically, “the public” does. In practice, however, openness too often serves the narrow purposes of special interests. Do the news media flock to our meetings? Do the public interest groups vie for seats in packed hearing rooms? Do interested consumers wait in line to hear debates on the hazards they face? Hardly.
In enacting the Sunshine and FOIA legislation, Congress wanted to give specific powers and tools to the public to guard against undue influence by special interests. Yet the very interests meant to be watched over have become the watchdogs. They, not the public, most often reap the benefits of openness, and at very high cost to the ability of government agencies to do what is expected of them. Stuart Statler 1981 (Freedom of Information) Let the Sunshine In?
Very much to the surprise of the reform members, this new, more responsive, less hierarchical Congress got less done than the old oligarchy had. “The day is gone,” said new Ways and Means chairman Al Ullman of Washington State, “when a chairman can wrap a neat little package in his back room. The open hearings and open markups, in which all members, not just a few, have a say, is the way this committee must work.” The old unreformed Congress had enacted the Supplemental Security Income program in 1971. The new reformed Congress could never quite organize itself to enact anything on such a large scale ever again.David Frum 2000 How We Got Here: The 70’s
In February 1973, Mills agreed “as an experiment” to let a tax bill go to the floor unprotected by a closed rule-the first time that had occurred since the 1920s. Mills’s “experiment” triggered an explosion in the number of lobbyists employed in Washington.David Frum 2000 How We Got Here: The 70’s
Outside pressures are often intense during markup deliberations. Under House and Senate sunshine rules, markups must be conducted in public, except on national security or related issues. Compromises can be difficult to achieve in markup rooms filled with lobbyists watching how each member will vote. Hence, committees sometimes conduct pre-markups in private to work out their positions on various issues.Roger Davidson, Walter Oleszek 2006 Congress and Its Members (6th Ed)
The freedom of information law’s “deliberative process privilege,” Barret wrote, was meant to protect frank discussions and to allay fears that tentative positions would be unearthed in later litigation or featured in press reports. “To encourage candor, which improves agency decision making, the privilege blunts the chilling effect that accompanies the prospect of disclosure.”Adam Liptak 2021 Justice Amy Coney Barrett Issues Her First Majority Opinion (FOIA)
With hearings and markups increasingly open to public scrutiny, party leaders and their interest groups were able to keep a closer eye and apply increased pressure on the decisions of committee members.Julian Zelizer 1998 Taxing America
Notably, the House in the 1970s for the first time introduced recorded voting in the Committee of the Whole (Smith 1989). As Roberts and Smith (2003) convincingly demonstrate, votes on amendments in the Committee of the Whole tend to be far more partisan and divisive than other types of House votes. The introduction of recorded voting on COW amendments, along with the ease of electronic voting, quickly led to an explosion of amendment votes, driven largely by minority-party Republicans who sought to force members of the majority party to take difficult or embarrassing votes, which added a whole new and divisive set of votes to the roll-call record. As Smith explains, “[minority Republicans] actively sought ways to challenge committee products, raise ideologically charged issues, and force recorded votes. [Robert] Bauman [R-MD] even entertained requests for recorded-vote amendments from Republican challengers to Democratic incumbents in order to compel Democrats to take politically dangerous positions” (1989, 34).William Egar 2016 Tarnishing Opponents, Polarizing Congress
The switch from the quiet back-room deals of the Ways and Means Committee to the more open procedures of the Finance Committee and the Senate floor shows how tax preferences thrive in the sunshine. It is relatively easy for legislators to turn down proposals for expanding tax preferences, or even to approve contractions, if their actions are hidden from public view. It is considerably more difficult to do so if legislators must vote publicly, either in committee or on the floor, to deny their constituents a share of group benefits. As Congress began in the 1970s to write tax bills more openly, legislators faced an increasing number of roll-call votes on tax preferences. In fact, during this one decade there were more than twice as many roll-call votes in favor of creating or modifying tax preferences as there had been in the six previous decades. As legislators voted publicly on these matters, they quite naturally voted to approve expanded tax preferences.Douglas Arnold 1990 (Princeton) The Logic of Congressional Action
It seems significant that the committee usually functions purposefully only after deals are made in secret caucuses. Then, with the votes in hand, the majority engages in ritualistic debate in open sessions before pushing through the bill it wrote behind closed doors.Norman C. Miller 1971 Here’s A Reform We Do Not Need
A look at the audiences attending the open bill-drafting sessions also casts doubt on the reform theory that special-interest lobbyists would lose a lot of clout it all committees were forced to draft bills in public. The fact is that all those people dutifully chuckling at the politicians’ endless attempts at humor during open sessions now are none other than the special-interest lobbyists, there to make sure that no member double-crosses them by reneging on a private pledge. It is perhaps because of this audience that the Education and Labor Committee habitually recommends multibillion-dollar authorization bills, even though everyone knows that neither the administration nor the Appropriations Committee will follow up with appropriations anywhere near the recommended levels.Norman C. Miller 1971 Here’s A Reform We Do Not Need
[In 1985, Senate Majority Leader] Baker and [Deputy Treasury Secretary] Darman envisioned a similar course for tax reform. They feared that if dealt with in the normal, wide-open legislative process, the tax bill would be picked apart by legions of lobbyists. Their best chance of success was to negotiate a “precooked” deal in private with a few key members of Congress. Then after the plan became public, it could be rushed through the legislature, just like the Social Security plan, before the lobbyists had an opportunity to pounce.Jeffery Birnbaum & Alan Murray 1988 Showdown at Gucci Gulch (1986 Tax Reforms)
Despite the late hour, the marble-lined committee room is packed to the doors with ‘people,’ and guards are stationed at the entrance to stop more from pushing in. Reporters sit cheek-by-jowl around two tables not far from the door, and the remainder of the room is filled with lobbyists – lots of lobbyists. [No constituents are present]Jeffery Birnbaum & Alan Murray 1988 Showdown at Gucci Gulch (1986 Tax Reforms)
By incorporating the role of an audience and of Presidential approval ratings, [Groseclose and McCarty (2001)] showed that it is possible for vetoes to occur even with perfect information exchange between the President and Congress. Effectively, the game adds a new dimension: now, even if Congress would benefit from striking a compromise from a policy standpoint, they benefit even more by causing the President to look extreme or look weak by having to veto a bill.Wesley Sheker 2019 The Observer Effect: the Impact of an Audience on Political Negotiations
In fact, he asserted that open markups can sometimes make members more vulnerable to pressure groups (special interests or lobbyists), and he suggested that, on occasion, better policy emerges from a closed policy process.Pete Davis 2018 Exploring Tax Policy
[In preparing for the successful and popular 1986 tax reforms, Treasury Secretary Regan] kept the group [of legislators] isolated from the political storms of the election campaign; indeed, he kept them isolated from all the pressures that usually play upon people in power. The meetings were supersecret; the secretary ordered members of the group not to talk about their work to anyone outside of the conference room. Papers presented at the gatherings were passed out just two days before each session, in sealed envelopes marked “Eyes Only,” with explicit instructions that the contents were to be viewed only by the ten policymakers, and not by their deputies. After each session ended, the papers were collected again… Week after week, they made multibillion-dollar decisions that struck not only at taxpayers’ pocketbooks, but at the very structure of American society. Their actions would affect the home, the family, the church, everything considered most sacred. Jeffery Birnbaum & Alan Murray 1988 Showdown at Gucci Gulch (1986 Tax Reforms)
But those opening shots were mostly for public display. After the first two days of meetings, the conferees secluded themselves behind closed doors and did not meet again in public until the final night of the conference, three weeks later. Packwood and Rostenkowski both believed that they had to shield the conference from lobbyists, the press, and the public in order to make progress. Said Packwood, “Common Cause simply has everything upside down when they advocate ‘sunshine’ laws. When we’re in the sunshine, as soon as we vote, every trade association in the country gets out their mailgrams and their phone calls in twelve hours, and complains about the members’ votes. But when we’re in the back room, the senators can vote their conscience. They vote for what they think is good for the country. Then they can go out to the lobbyists and say: “God, I fought for you. I did everything I could. But Packwood just wouldn’t give in, you know. It’s so damn horrible.” Jeffery Birnbaum & Alan Murray 1988 Showdown at Gucci Gulch (1986 Tax Reforms)
Public engagement and transparency may put pressure on regulators to give particular perspectives or sets of facts more prominence than they deserve (Kerwin & Furlong 2011:167- 68; Gormley & Balla 2004). Scholars refer to pathologies of participatory bias as “regulatory capture,” particularly when regulated industry exercises undue influence over regulatory decision-making (Carpenter & Moss 2014). In siting or permitting decisions, public engagement and transparency may increase the opportunities for a vocal minority to demonstrate what some have called “persistent selfishness” (Irvin & Stansbury 2004). Regulators have long lamented the “Not-In-My-Back-Yard” syndrome (Rabe 1994). Regulators may face pressure to cater to those with the strongest voices. Powerful interests may willingly obfuscate issues or overwhelm processes with information in order to maximize personal or group goals (Wagner 2010; Michaels 2008).Jennifer Nash & Daniel Walters 2015 Public Engagement and Transparency in Regulation
In a ploy to keep the effort from stalling, Packwood announced to the hallway loiterers – reporters as well as lobbyists – that there would be no sessions over the weekend. The hallway erupted with applause and cheers. In fact, first thing Saturday morning, the Finance Committee chairman secretly convened his core group for the most serious bargaining session of the entire process. [And they] began to fill in the details of the most sweeping tax-reform bill in American history.Jeffery Birnbaum & Alan Murray 1988 Showdown at Gucci Gulch (1986 Tax Reforms)
One of the main factors that allowed the committee to socialize its members into committee norms was the ability to iron out differences away from the eyes of the public and the other House members. One element of the Republican revolution was a desire to open the legislative process to the public and the press, and the HAC [House Appropriations Committee] began allowing the press into conference committee meetings and subcommittee markups (except defense and a few other national-security-related segments). This change brought opportunities for additional public grandstanding and reduced cover for compromise.Joshua Gordon 2005 Congress Reconsidered 8th Ed
It got worse. The caucus in 1973 had approved another rules change that required committees to conduct their meetings in open session unless its members voted to close the doors. Although Ways and Means members in the next two years continued to make their key decisions mostly in private, the pressure to work in the sunshine had the unintended consequence of increasing lobbyists’ access to the panel’s deliberations. Open meetings, several members said, altered the atmosphere just enough to create problems.Richard Cohen 1999 Rostenkowski - Pursuit of Power
A common feature of these informal arrangements is that all of them have taken shape behind closed doors, with party leaders controlling the process. In at least one aspect, therefore, Wilson’s portrayal of Congress remains valid. “One very noteworthy result of this system,” he wrote, “is to shift the theater of debate upon legislation from the floor of Congress to the privacy of the committee rooms.”Richard Cohen 1990 (Climate) Crumbling Committees
Congress has turned to these new arrangements, in part, to ease the lawmakers’ burden. “The erosion of the committee process has made life more difficult in the Senate,” said a former top Senate aide who is now a corporate lobbyist. But the informal, closed-door sessions that have resulted from this erosion “may be an attribute for Senators working in a fishbowl, where every lobbyist knows what is happening before he does.”Richard Cohen 1990 Crumbling Committees
When interest rates rise, when trade deals are concluded, when industries are deregulated, populists protest that it was all done by sinister bodies, operating in the dark. And yet these institutions function well precisely because of their distance from day-to-day politics. They provide enormous benefits for the average citizen, in the form of stronger growth, greater productivity, a stable fiscal environment, and many more economic opportunities. Fareed Zakaria 2003 Future of Freedom
As the great democratic theorist Robert A. Dahl (2015: 96) notes, “Although open voting still has a few defenders, secrecy has become the general standard; a country in which it is widely violated would be judged as lacking free and fair elections.” If we embrace the secret ballot, though, then we admit that not every aspect of our politics should be open to public observation and scrutiny. As another example, central banks often deliberate in secret. This is done to prevent financial markets from overreacting to the slightest slip of the tongue and also because many monetary interventions (such as inflation) work only if they are unanticipated. Opacity here seems to be serving a very important function. As a final example, much diplomacy between nations is conducted in secret. Indeed, some of our greatest triumphs in the international arena - from Nixon’s opening to China to Obama’ s 2015 Iran nuclear deal - originated in covert, backroom meetings (Allison 2018).I Once more, secrecy plays a vital role.Brian Kogelmann 2021 Secret Government: The Pathologies of Publicity
Forty years ago the Watergate scandal deeply wounded Americans’ faith in government. Since then, good-government reformers and big government opponents have been on a shared mission to make everything transparent. The problem is that too much light is scaring Congressmen away from making the tough choices necessary to govern in the national interest. It’s no secret that the back rooms are where things get done and where politicians can collaborate without reprisal.Jason Grumet 2014 City of Rivals
As a reporter, my biggest gripe about government transparency is that there isn’t enough of it. Opening up the business of government for public view keeps lawmakers and other officials accountable and puts voters in the loop. That’s why journalists seek out government documents; pore over lobbying, ethics and campaign finance disclosures; and camp out at the press table during Capitol Hill hearings. Recent testimony during one such committee introduced a perplexing, albeit intriguing, concept: Sunshine in government feeds the lobbyists like the actual sun nourishes a milkweed, enables them to thrive — often at the expense of ordinary folks. To make matters worse, this theory goes, transparency may breed stalemate and partisan rancor as lawmakers play to the cameras instead of brokering deals, in private, with their colleagues across the aisle. It wasn’t a bragging K Street fat cat who espoused this idea. No, it hails from academia. “When congressional proceedings are very open, the people who are most attentive are those with an economic stake: the lobbyists,” says Frances Lee, a government professor at the University of Maryland. “If everything has to happen in public, then it’s hard to get people moved off their partisan talking points.” Lee, who chairs a task force on congressional overhaul for the American Political Science Association, offered this perspective during a recent hearing of the Select Committee on the Modernization of Congress… While Lee’s view may be antithetical to some of journalism’s most sacrosanct principles, she says the downside of government sunshine is widely accepted in academia. And it’s a concept worth chewing on. Interest groups routinely rate lawmakers based on how they vote, factoring the scores into decisions on endorsements and campaign donations. Do average voters plot out such stats? “Who has the money to pay people to attend committee meetings?” Lee says. “It’s true that anyone in society in theory can go, but the bulk [of attendees] are the corporate interests.” Kate Ackley 2019 Too Much Sunshine Can Sometimes Burn
Of course, most roll call positions considered in isolation are not likely to cause much of a ripple at home. But broad voting patterns can and do; member “ratings” calculated by the Americans for Democratic Action, Americans for Constitutional Action, and other outfits are used as guidelines in the deploying of electoral resources. And particular issues often have their alert publics. Some national interest groups watch the votes of all congressmen on single issues and ostentatiously try to reward or punish members for their positions. David Mayhew 1974 The Electoral Connection
Former Republican US Representative, Trey Gowdy tells MSNBC that closed door hearings work far better and reduce bickering – Oct 24, 2019
As Yglesias and Bazelon note, Congress also passed important legislation in the supposedly gridlocked closing years of the Obama and Trump administrations. The secret of this legislative success? The very fact that the legislation was secret. Well, not literally secret. But definitely not pushed by the White House, and not aligning precisely with the ideological priorities of each party's activist cheerleaders in the media and on the sidelines. The trick, it seems, is for members of Congress to find unpredictable cross-party partners to work with on issues that cut across these divides and then for the president to stay out of it, since his involvement will usually guarantee staunch opposition by members of the other party.Damon Linker 2021 The Secret Congress paradox
Information, data and the unbounded flow of more and more speech can be politicized… when that happens… transparency and the unbounded flow of speech become instruments in the production of the very inequalities (economic, political, educational) that the gospel of openness promises to remove. And the more this gospel is preached and believed, the more that the answer to everything is assumed to be data uncorrupted by interests and motives, the easier it will be for interest and motives to operate under transparency’s cover… Because it is an article of their faith that politics are bad and the unmediated encounter with data is good, internet prophets will fail to see the political implications of what they are trying to do, for in their eyes political implications are what they are doing away with.Stanley Fish 2018 ‘Transparency’ is the Mother of Fake News
Among American institutions, Congress is at once the most transparent and the most reviled. Its votes, hearings, and debates are broadcast live for anyone to see; inside the Capitol, reporters can walk up to just about any of its 535 members and ask why they voted a certain way, or whether the latest reported scandal is true. Unfortunately for lawmakers, all of this visibility has helped make Congress only slightly more popular among U.S. citizens than Vladimir Putin.Russell Berman 2022 Atlantic Magazine Shadow Congress
I like to keep as much of the negotiation and the actual compromise private, because otherwise people are forced to the corners by lobbyists and special-interest groups...Informing the public every step of the way may serve some purpose. Certainly in a democracy, transparency is a critical part of it. But human nature suggests that many times the toughest negotiations have to be in private.Senator Dick Durban 2022 Shadow Congress
Congress utterly polarized? Once upon a time, members of Congress did their business mostly in secret. They struck quiet deals with each other. A Republican might support a Democratic labor measure in return for some discreet help with a farm bill. Today, everything happens in the bright glare of sunshine, policed by hundreds of ideological interest groups. Deviate one step from the party line, and you are a traitor, a sell-out, an enemy. Just ask Scott Brown, yesterday's Republican hero, today a villain for voting against the filibuster of a jobs bill. We have an ideology that more publicity, more transparency, more openness must improve Congress. And when each successive wave of openness makes things worse, we tell ourselves that the answer is even more publicity, transparency and openness still. No contrary evidence makes any impression. Seems like everything’s open – except our minds.David Frum 2010 Blame yesterday's reforms for today's gridlocked Congress
The recorded teller vote, he recognized, is in principle good for democracy, but even this has another side. ‘The amending process became a ‘gotcha’ process rather than a legislative process. It enabled all of these single-issue groups to get a roll call on everything and run a TV ad against you financed by special interests’Rep. David Obey 2014 Michael Schudson (Rise of Right to Know)
Full transparency in government, in professional-client relations, and in personal life can do great harm. It threatens privacy. It threatens relations of intimacy that invariably are built on closely held confidences. In government or other decision-making groups it inhibits honest conversation. It may expose vulnerable individuals or groups to intimidation by powerful and potentially malevolent authorities.Michael Schudson 2014 The Rise of Right to Know
A broad movement toward “government in the sunshine” resulted in widespread changes in the internal processes of governing institutions. In Congress, for example, the early 1970s saw the opening of many committee meetings to the public and a movement away from anonymous voting procedures (voice, standing, and teller voting) in favor of putting everything on the record, a development that accelerated after electronic voting was instituted. Although government reformers believed that greater transparency would make it more difficult for members of Congress to conceal votes cast on behalf of special interests, they seem to have ignored the symmetric possibility that more openness made it much easier for special interests to determine whether members were actually delivering on their end of the deal. Many scholars pondered the consequences of congressional decentralization in the 1970s, but fewer reflected on the consequences of making the activities of its members so much more visible to interest groups.Mo Fiorina 2012 Disconnect: The Breakdown of Representation
Among the biggest skeptics of broadcasting Senate proceedings was a freshman senator who had won his 1984 election in part by mocking a Democratic incumbent for his low Senate visibility. “I remember thinking it would be a big mistake, and voting against it,” Senate Majority Leader Mitch McConnell (R-Ky.) told C-SPAN in a special interview celebrating the anniversary… There has been grandstanding for the cameras, for certain. Last year, three Senate freshmen running for president — Ted Cruz (R-Tex.), Rand Paul (R-Ky.) and Marco Rubio (R-Fla.) — drew the ire of Senate elders who accused them of using the floor for political benefit, including Cruz’s labeling of McConnell as a liar based on a trade deal… “This is a high and holy calling, it is not something to take for granted,” Sen. Orrin G. Hatch (Utah), the longest-serving Republican, said in a speech rebuffing the trio. Hatch pleaded for restraint from turning the floor into “a forum for advancing personal ambition.”Paul Kane 2016 30 Years of C-SPAN’s Senate Broadcasts
Healthy bipartisan compromise seems completely hopeless with this crew. But underneath that circus that circus, there has always been another layer of politics — led by people who are not as ratings-driven, but are more governance-driven. So over the past 20 years or so, while the circus has been at full roar, Congress has continued to pass bipartisan legislation: the Every Student Succeeds rewrite of federal K-12 education policy, the Obama budget compromise of 2013, the Trump criminal justice reform law of 2018, the FAST infrastructure act, the Anti-Money Laundering Act of 2020, the Trump-era ban on surprise billing in health care. In June the Senate passed, 68 to 32, the United States Innovation and Competition Act of 2021, which would devote roughly $250 billion to scientific projects. Matthew Yglesias and Simon Bazelon call this the “Secret Congress” — the everyday business of governing that works precisely because it isn’t on cable TV.David Brooks 2021 The Biden Approach Is Working
Then, too, Senator Muskie had to be concerned with attracting Republican support. He faced a dilemma. On the one hand, he had to outdo President Nixon in order to preserve his environmentalist credentials43—Ralph Nader, then at the height of his influence, had blasted Senator Muskie for not being aggressive enough44—and thus help him remain the leading candidate for the Democratic presidential nomination in 1972. On the other hand, Senator Muskie needed to develop a bill with enough bipartisan support that it could make its way through the Senate and House. So, he worked with Republican and Democratic members of his subcommittee behind closed doors—this was before the congressional reforms adopted after Watergate—to satisfy them.Craig N. Oren 2016 Struggling for Context: An Appraisal of “Struggling for Air” (Climate)
The 1975 rules change that opened to the public all Senate committee meetings, including mark-up sessions, has had a major impact upon committee functioning… Almost all committee decision-making sessions are now open to the public and the press. Senators’ actions are subject to direct scrutiny by lobbyists who compose much of the often large audience for mark-up sessions… Open mark-ups and conference committee meetings give interest groups without strong ties to influential committee members a better chance to have an impact on committee decisions. Such groups now have much more access to timely information. The opening of mark-ups changes the dynamics of decision making. With press and lobbyists watching, compromise may be more difficult, and grandstanding may be encouraged.Barbara Sinclair 1989 Transformation of the US Senate
In 1986… The open mark-up session had gotten completely out of hand; majorities had approved tax breaks for special interests that cost billions and made a mockery of the reform label.Barbara Sinclair 1989 Transformation of the US Senate
The [1911] rules served to break up the small clique in power and gave the representatives generally more control of procedure. This was a blow to the old lobby. It was patently impossible to attempt to cajole or bribe an entire Congress. Another reform in the legislative procedure that tended to improve the methods of the lobbyists was the adoption on the part of Congress in the early years of this century of the policy of holding on all important bills, open committee hearings which the proponents and the opponents of a measure might attend and there state, frankly and publicly, their attitude toward the legislation under consideration. Only the hearings of the Appropriations Committee are now held in executive session as a general rule. By thus openly testifying before committees the lobbyists of legitimate interests can make their appeal to a much wider audience. Not only Congress but the whole country as well may know their arguments for a bill. The frankness of the legitimate interests makes it necessary for the questionable lobbyist to assume a like guise. It is not possible to work behind “closed doors” to the same extent. The general public is thus enabled to understand more clearly the forces that are interested in certain legislation.”Pendelton Herring 1929 Group Representation Before Congress
In order to encourage consensus, since 1983, the chairman [Rostenkowski] has held more closed committee meetings than his predecessor. Although open meetings during the “sunshine” era of the 1970s were meant to improve the committee’s proceedings by exposing them to public scrutiny, the public that attended committee meetings was composed mainly of lobbyists. Committee members appreciate the opportunity closed meetings provide for candid discussion, and they believe that their legislative product is improved because of closed sessions. Bill Frenzel (R-MN), for instance, has reversed his opposition to closed meetings: “Since our meetings have been closed, our work has been less flawed… and our consensuses much stronger. I think it’s the only way to fly.” Donald R. Kennon & Rebecca M. Rogers 1989 Ways and Means a Bicentennial History 1789-1989
Down to the middle of the eighteenth century the meetings of the British Parliament for the transaction of all types of business and of the legislative bodies of the British colonies in America all were held behind closed doors. The votes and speeches in these sessions all were secret and anyone publishing any of this secret information was liable to citation for contempt. The House of Commons in 1641 expelled one of its own members, Sir Edward Dearing, and sent him to prison for reporting one of his own speeches. As late as 1746, the editor of the Gentleman’s Magazine was arrested and brought to the bar of the House of Commons for having reported parliamentary proceedings.Congressional Quarterly 1929 Secret Sessions of the Senate (England)
The first legislative body in America to open its doors to the public was the General Court of Massachusetts, which yielded in 1766 on the motion of James Otis to the public demand for publicity of debates. The Continental Congress met in secret, but was required by the Articles of Confederation to publish “for the information of the people” a complete journal of its proceedings, save only such parts as related to “treaties, alliances and military operations, which require secrecy” – it being then a time of war.Congressional Quarterly 1929 Secret Sessions of the Senate
Before this I presume, the Printers in Boston, have inserted in their Gazettes, the Debates of the House or Representatives, which are conducted with open Galleries. This Measure, by making the Debates public will establish the national Government, or break the Confederation.Vice-President John Adams 1789 Letter to Abigail Adams
Sometimes we don’t want to take a recorded vote when there are a lot of lobbyists out there… [In a closed session] a member can enter a mild protest about the defeat of an amendment he might otherwise feel compelled to support… Then, when the markup is over, the member can go out into the hall and say to the lobbyist, “I worked to get your amendment adopted but I just got outvoted.”Randall Strahan 1989 The New Ways and Means
Ways and Means members stated in interviews that they felt greater freedom to attend to concerns other than immediate demands of constituency and clientele groups when deliberations were closed to the public and press. Procedures that allow some insulation of committee deliberations from direct constituency and group pressures thus appear to allow greater freedom for members to act to advance policy or prestige goals in cases where these may be in tension with electoral incentives. Randall Strahan 1989 The New Ways and Means
The impact of congressional reform upon the substance of Ways and Means legislation was not precisely what reformers had hoped for. Committee member William J. Green (D-PA) observed after the first year of the Ullman committee that liberal expectations had proven to be “a lot of journalistic excess,” even though the composition of the committee had been altered in a liberal direction… Opening up the committee procedure, paradoxically perhaps, opened tax legislation to demands for even greater tax reductions and benefits that were not always in the public interest. Donald R. Kennon & Rebecca M. Rogers 1989 Ways and Means a Bicentennial History 1789-1989
This Article, written for a forum on comparative administrative law, reviews the development of public participation and transparency in American administrative law in general and then examines three specific laws that attempted to increase transparency and public participation - the Federal Advisory Committee Act (FACA), the Government in the Sunshine Act (Sunshine Act), and the Negotiated Rulemaking Act (NRA). These laws, however, are largely viewed as failures, or at least deeply ineffective, in achieving their goals. In examining these laws, this Article attempts to discern why they failed and suggests that the reasons for their failure are not of a nature that can be easily cured by amendment, but rather reflect significant structural impediments to increasing transparency and public participation through such mechanisms. In this way, this Article may provide guidance to EU lawmakers in attempting to craft mechanisms that can effectively facilitate public participation and transparency in EU agency decisionmaking.William Funk 2009 Public Participation and Transparency in Administrative Law (Executive)
Secret congressional committee meetings, for example, were opened to the public by the 1976 Government in the Sunshine Act during the post-Watergate spasm of clean-government activism. But the report notes that research later found most senators fingering open meetings as the biggest impediment to negotiation—and that was back in 1982. More recent studies found, for example, that European Union negotiators compromise on controversial position papers more readily in private negotiations.Cathie Jo Martin & Rich Barlow 2019 Could More Backroom Deal-Making Save Congress?
The ability to resolve issues in closed sessions allows members to avoid some of the direct responsibility for imposing costs on constituency interests or group allies, as was almost inevitable with tax reform. To use the formulation developed by R. Kent Weaver, closed meetings are in part a mechanism for blame avoidance on issues that may have negative consequences for committee members’ constituencies.
According to some members, a closed deliberative process, by weakening the pull of particularistic interests, encourages members to consider broader issues that may be at stake in committee bills. One member observed that he and his colleagues tend to be much more “outspoken” about “what is right for the country” in closed sessions. Said another on the effects of closing markups: “We don’t think so much about the posturing, about satisfying someone sitting there watching you, as the needs of other members and what we perceive to be important.” Finally, one senior Republican stated directly: “I think without the dosed markups [Rostenkowski]… couldn’t have passed the tax reform act.”Randall Strahan 1989 The New Ways and Means
Increased openness in committee deliberations also suggests the possibility of greater influence for clientele groups in the committee’s environment than before the reforms.Randall Strahan 1989 The New Ways and Means
The return to closed committee deliberations is one factor that helps explain the outcome on tax reform. Closed markups allowed members to avoid individual responsibility (and thus individual blame) for eliminating some of the Tax preferences important to clientele groups, and thus helped shift the focus of the committee’s deliberations from protecting parochial interests to achieving broader objectives through tax reform.Randall Strahan 1989 The New Ways and Means
“Concerning the consequences of closed sessions for tax bills prior to 1985, one Ways and Means member noted: “I think closed meetings were especially effective in developing the ‘83 and ‘84 tax bills, in removing exemptions, and [in] refusing to accept amendments that would have lost money for the Treasury.”Anonymous Member of Ways and Means 1989 The New Ways and Means
The day secrecy is abolished, negotiation of any kind will become impossible.Jules Cambon 1935 Secret Diplomacy
It is a truism of government that compromise cannot be pressed in public; the open forum of the parliamentary floor is well designed for ideology and rhetoric, but the real areas of agreement are more often to be found in committees, corridors, and cloakrooms.Floyd Matson 1955 In Defense of Compromise
The most sophisticated criticism of open meeting legislation is that necessary negotiation and compromise are prevented by public discussion. Critics note that special-interest lobbyists are now able to attend bill-writing sessions of the Senate Finance and the House Ways and Means committees. Such lobbyists can scrutinized the activities of their tax-writing congressional friends, who with open meetings lose the opportunity of dropping a special-interest tax exemption in a closed meeting and telling a white lie to a lobbyist friend about what happened behind closed doors. One Ways and Means Committee member told me that he sees “lots of lobbyists” at open committee meetings, but he “doesn’t see lots of housewives coming down from the suburbs.”Andrew S. McFarland 1984 Lobbying in the Public Interest (Common Cause)
The results [of opening up the conference committees in 1975] is that under the watchful eye of lobbyists, conferees tend to fight harder for provisions they might have dropped quietly in the interests of bicameral agreement. In 1981, for example, a key farm lobbyist was credited with influencing the agricultural conference “just by sitting in the front row.” His presence was significant because “members know that he will report back to the sugar growers telling them who their friends are, and his mere presence reminds the lawmakers how the game is played.”Lawrence Longley & Walter Oleszek 1989 Bicameral Politics
SASC [Senate Armed Services Committee] markups have always been closed. While the committee must release the results of any roll call votes during markup (in accordance with Senate Rule XXVI 7(3)(b)), the debates, amendments, and non-roll call votes can remain secret. Staff preparations for the markup are also embargoed. While the nominal justification is concerns over national security, Shogan (2012) argues that more practical considerations prevail. Citing interviews with current and former SASC staffers, Shogan argues that the closed markup allows SASC staffers greater scope for candidness in discussion and pragmatism in compromise, freed from the scrutiny of the press, lobbyists and advocacy groups.Katherine Blakeley 2017 Fighting Green: How Congress and the Pentagon Make Defense Policy
During the markup process, lobbyists and reporters are kept at a distance. Usually, the chair and the ranking member stress to staff at the beginning of the full committee markup the importance of confidentiality during the committee’s deliberations. Leaks to the press or interest groups are taboo and considered unprofessional.Colleen Shogan 2011 Defense Authorization: The Senate's Last Best Hope
Most committee staffers and MLAs agree that the closed markup in SASC results in a more efficient and candid policymaking process. Without reporters or lobbyists in the room, Senators are free to debate difficult decisions and make deals without the pressures to posture or conform to narrow ideological or parochial views.Colleen Shogan 2011 Defense Authorization: The Senate's Last Best Hope
In an open meeting, the lobbyist knows “who does what, says what, and stands for what.” The conferee’s decision is there for all to see, and “promise-making includes promise keeping.” Besides pressures on conferees arising from lobbyists’ presence, open conference sessions give lobbyists and other interested parties the ability to know more precisely and accurately what is going on. When conferences were closed, a lobbyist’s knowledge of the proceedings was less certain because he generally could monitor the conferences only through information supplied him by conferees who favored his viewpoint. Allies are not always perfect information sources, especially if they have modified or wavered in their initial views and positions. Now, having more complete and direct information through personal observation of conference negotiations, lobbyists can better ensure that their influence and persuasive efforts bear fruit.Lawrence Longley & Walter Oleszek 1989 Bicameral Politics
China 2018 - Intimidates and Bribes UN Votes
The public voting board was introduced in the 1970s and is visible in this video at 7:02. Transcript starting at 6:32 Narrator: “It’s been found that if an African country recognizes (votes in the UN in support of) Taiwan as a country they receive, on average, 2.7 fewer Chinese infrastructure projects within their borders each year. Conversely, if an African country votes overwhelmingly along with China in the United Nations General Assembly, they receive 1.8 more infrastructure projects per year. Considering that the General Assembly is an equal representative body where each country gets one vote no matter if they have a million residents or a billion, China’s getting a lot of influence for, in the grand scheme of things, not a lot of money.”
In many cases, however, there is little political isolation for the conferees. Instead external participants such as the president, representatives of governmental agencies, and interest groups have intense interest and impact on the conference deliberations. “This is not a conference between the two houses,” remarked Senator John Danforth (R. Mo) in 1988 about the omnibus trade conference of the 100th Congress. “It’s a conference between Congress and the administration.” Some conferences, in brief, operate in relative isolation’ others are deeply immersed in politically volatile webs of interests and pressure.Lawrence Longley & Walter Oleszek 1989 Bicameral Politics
In the back room of the Senate Finance Committee earlier today, I took the same position I’m taking now. I said that this should be ventilated, and there is no reason not to put it out before the public and give us and our staffs a chance to look at it before we sign the conference report. The position that was taken by our chairman, by Secretary Baker, and several other senators who were present was: “Well, we can’t do that. We can’t put it public, we’ve got to sign the conference report now.” Why? Well the reason given was that if we don’t do it now, people are going to find out what we’re doing before we do it. And if they find out, they’re going to bring pressure on us during the recess. Lobbyists, interest groups, people who have concerns about the bill are going to bring pressure on the Congress, and we can’t have that. Now, Mr. Chairman, I don’t understand what’s wrong with a little sunshine in government!Representative John Danforth 1986 Showdown at Gucci Gulch (1986 Tax Reforms)
It used to be that secrecy was seen as essential to good government, especially when it came to crafting legislation. Terrified of outside pressures, the framers of the U.S. Constitution worked in strict privacy, boarding up the windows of Independence Hall and stationing armed sentinels at the door. As Alexander Hamilton later explained, “Had the deliberations been open while going on, the clamors of faction would have prevented any satisfactory result.” James Madison concurred, claiming, “No Constitution would ever have been adopted by the convention if the debates had been public.” The Founding Fathers even wrote opacity into the Constitution, permitting legislators to withhold publication of the parts of proceedings that “may in their Judgment require Secrecy.”James D’Angelo & Brent Ranalli 2019 The Dark Side of Sunlight (Foreign Affairs Magazine)
Before the reforms, it was much more difficult to hold individual members accountable for specific provisions of tax legislation. Instead, bills were collective, privately forged committee products that were presented to the House in a take-it-or-leave-it manner… With the congressional reforms the balance of power shifted. To retain their seats and to win House approval of committee bills, Ways and Means members had to be more responsive to requests from constituents, organized interests, and their House colleagues. These new pressures were intensified by the sunlight of open meetings. Ways and Means members could now be held accountable for their positions on every provision that made up a tax package. In short, the Ways and Means Committee was easier to penetrate, particularly by organized interests, and much less autonomous. In turn, the committee could no longer provide cover for House members.Catherine Rudder 1989 Fairness and the Revenue Committees
Reformers ought to steer clear of always trying to ensure more democracy, more openness. I think the constant pressure for “more democracy” has had some negative consequences. The openness in Congress has meant being open to organized interests, not to a broad public. Opening up the the parties has just made them more accountable to activist groups. Openness is not always the solution. It’s the easiest normative rationale one can offer for reform proposals. But in the real world it often has negative consequences.Frances Lee 2018 The Parties Are Dying
Japanese constitution-makers paid careful attention to Prussian political theory and turned to Prussian advisers for guidance in drawing up the document which became the Constitution of 1889. Emissaries were even sent to America but they rejected the American model as unworkable. The German Constitution offered a suitable pattern for adaption to Japanese needs. As Sansom points out, the government for their part was interested in examining ‘the practical working of the systems of government in use in the leading countries of the West, in order to ascertain which was most appropriate to the needs of Japan.’ More than twenty German advisers and experts were said to be employed in connection with the drafting of the constitution. The constitution was drafted secretly and was handed down from above (granted by the Emperor as a ‘gift’ to the people) and not arrived at through free discussion in a constituent assembly. This secret procedure was said to have been suggested by Harvard educated Kaneko Kentaro (one of the three men most intimately involved in the drafting work), who had discovered that the deliberations of the American constitutional forms had been in secret.Berm Prasad Barua 1967 Constitutional Evolution of India and Pakistan - The Meiji Constitution
Ray Dennison, an AFL-CIO lobbyist who opposed the trade bill, said he always prefers open markups and found the closed trade bill sessions particularly unfair.CQ Quarterly 1973 Senate and House Open Up their Sessions
Note: Dennison is a lobbyist who is explicitly calling for more transparency.
The Mitchell-sponsored talks were conducted behind closed doors and they spurned roll-call votes that would have revealed the legislative divisions. Mitchell believed, probably correctly, that senators would not get down to hard negotiating on environmental issues so long as they were in the public spotlight, where they might make statements that a political opponent could use against them. The closed-door meetings also allowed senators to ask questions and to educate themselves about often complex issues in a way that might have proved embarrassing in front of a television camera.Richard Cohen 1994 Washington at Work: Back Rooms and Clean Air (Climate)
Note: This citation refers to the passage of the 1990 Clean Air Amendments (the most powerful environmental/climate legislation in the past 40 years), which were brokered almost exclusively behind closed doors by Mitchell and others expressly to avoid the pressure of lobbyists. Full citation can be found here.
The 10 weeks needed to pass the clean-air legislation were unusual in several respects. There was no extended talk and procedural delay on the Senate floor, as is traditional in a filibuster. Instead, most of the debate was conducted behind closed doors a few feet away from the Senate chamber in the back room of Mitchell’s spacious leadership suite. From all reports, that discussion among senators was exceptionally spirited as lawmakers abandoned their aides and speeches to engage in real exchanges of views.Richard Cohen 1992 p88 Washington at Work: Back Rooms and Clean Air
Note: Cohen remarks how the Civil Rights legislation was burdened by endless filibuster whenever the talks were brought into the public sphere. Indeed, in other graphs on this page, once can see the massive rise in filibusters when Congress acts in the sunshine of open doors.
Opening meetings to the public has meant opening meetings to everyone, including lobbyists, who, it has been claimed, take an even greater part in writing Ways and Means legislation than they did in the past… Thus, the open meetings have made members more accountable to whoever cares to pay attention.Catherine Rudder 1977 Committee Reform
After the 1976 Government in the Sunshine Act required that congressional committee meetings be public, surveys of senators soon concluded that these open meeting requirements were the largest single cause of a decline in the ability to negotiate and to make politically difficult trade-offs.Richard Pildes 2014 Romanticizing Democracy
The silent majority is not going to be present at the open markups of the bills; they are going to be too busy and too occupied otherwise. But if you have open markup on bills… do you not think that the special interests will be there? The silent majority will not be there, but the special interests will be well represented.Rep George Mahon 1970 Donald Wolfensberger (Congress & the People)
The House Committee on Public Works, for example, had about six staffers assigned to the 1972 Clean Water Act. One of them, Gordon Wood, remembers an intimate process that enabled compromise... He said closed-door meetings enabled lawmakers to take off “their blue shirts and red neckties.”Emily Yehle 2014 Recalling the long, hard slog to a ‘Historic piece of legislation’ (Climate)
Transparency Could Stymie the Deal: The congressional supercommittee charged with tackling the federal debt crisis is facing overwhelming calls to conduct all its deliberations in the open, but some voices are warning that too much transparency could end up dooming the whole thing. “Do you want to get anything done?” said former Rep. Thomas M. Davis III, Virginia Republican. “I think you lock them in a closed room and let them hammer it out, where they can say what they want to say, where they can bring up what they want to bring up and not have it held against them on the Sunday talk shows.”Stephen Dinan 2011 Exposure vs. Efficiency
[Samuel] Adams was rare for his ability to keep a secret, any number of which he took to the grave, including the backstory of the Boston Tea Party, which he knew as well as anyone. (Dryly he noted that some individuals enjoyed every political gift except that of discretion.)…Much of his work depended on plausible deniability. He covered tracks and erased fingerprints. He made no copies of his letters. John Adams watched helplessly in 1770s Philadelphia as his cousin fed whole handfuls of papers to the fire in his room. Was he perhaps overreacting? asked John. “Whatever becomes of me,” Samuel explained, “my friends shall never suffer by my negligence.” In the summer, he used scissors to cut bundles of letters to shreds and scattered the confetti from the window, sparing his associates if stopping the biographer’s heart. A portion of what he did not manage to destroy met with some mistreatment, of which we have only hints. He operated by stealth, melting into committees and crowd actions, pseudonyms and smoky back rooms. “There ought to be a memorial to Samuel Adams in the CIA,” quips a modern historian, dubbing him America’s first covert agent. We are left to read him in the twisted arm, the borrowed set of talking points, the indignation of America’s enemies. We know more about him from his apoplectic adversaries than from his friends, sworn to secrecy.Stacy Schiff 2022 The Revolutionary: Samuel Adams (Sam Adams)
Elizabeth Theiss-Morse, of the University of Nebraska says most voters don’t want to see Congress in action. “These Americans would much rather have Congress do its work behind closed doors so long as their representatives are not being bought by special interests and so long as the public has the opportunity to learn about decisions, the reasons for and against them, and why their representatives decided what they did,” she said. She said transparency is “often good, but not in this case,” because lawmakers would have to spend so much time defending their ideas against attacks from interest groups. “If the supercommittee had to air every idea in public, it would be a disaster.”Stephen Dinan 2011 Exposure vs. Efficiency
Sen. Edmund S. Muskie of Maine, while supporting some means of unfiltered public exposure of Congress to the public through television, called attention to shortcomings in network coverage of committee hearings. “We all know that conflict makes news,” he said. “We also know that a televised shouting match usually concentrates more on the exchange of insults than the exchange of ideas.” In fact, “a congressional investigation receives more attention when important voices--but not necessarily significant questions--are raised.” Moreover, “the bulk of our productive work in the Senate,” what Muskie called “the actual exercise of legislating,” receives little attention from the media. In committees with open markup sessions, “private interests have been well represented in the audience – as lobbyists – while the public interest – in the form of journalists – has been noticeably absent.” He concluded on this point that “a clash of opinion is innately more newsworthy than the resolution of those differences.” Donald Wolfensberger 2000 Congress & the People
Because this Government is Republican, it will not be pretended that it can have no secrets…To discuss the secret transactions of the Government publicly, was the ready way to sacrifice the public interest. Debates and Proceedings of US Congress 1798
There are, in short, more people than ever before watching Congress, and fewer secrets that can be kept hidden. The work of Congress is more than ever before a public enterprise, and information about what is happening, and why, is readily available to those who know how to obtain it. It is precisely the very openness of the process that makes Congress so susceptible to influence by lobbyists.Bruce Wolpe 1990 Lobbying Congress
Efforts to dampen corruption with transparency usually threaten to promote it. The source of the problem is easy to explain. Corruption requires bargaining. By sharing information, transparency lowers the transaction costs of corrupt bargaining.Michael Gilbert 2018 Transparency and Corruption
This openness presumably made Congress more accountable to the general public. In some cases, however, the main beneficiaries have been organized interest groups – which, unlike the general public, closely monitor legislative activity and keep track of friends and enemies.Paul Quirk 1991 Evaluating Congressional Reform
The effect of open committee meetings, although intended to bring committee ties to organized groups into the “sunshine,” is more debatable. The attentive audience for committee meetings is often precisely those groups; and indeed committees have defended private negotiations and closed sessions as ways to reduce group pressure.Paul Quirk 1991 Evaluating Congressional Reform
Prior to 1970, much congressional activity was not readily observed by ordinary citizens. Many committee meetings, including most bill-drafting or "markup" sessions, were closed to the public. Floor debate was not televised. Many important floor votes were conducted as unrecorded voice votes, with the presiding officer simply calling for the yeas and nays and judging which were louder. The public learned only which side had won, not how their representatives had voted. As Bessette points out, the closed arrangements had the advantage of permitting members to deliberate with some autonomy. Paul Quirk & Sarah Binder 2005 Institutions of American Democracy
Meetings occur behind closed doors so lawmakers can escape pressures from lobbyists and reporters, who have made it more difficult for them to handle business “in the sunshine.”Richard Cohen 1994 Washington at Work: Back Rooms and Clean Air
Note: This citation refers to the passage of the 1990 Clean Air Amendments (the most powerful environmental/climate legislation in the past 40 years), which were brokered almost exclusively behind closed doors by Mitchell and others expressly to avoid the pressure of lobbyists. Full citation can be found here.
As the budget debate moved at half its expected pace in May 1979, Speaker “Tip” O’Neill claimed that more than the usual number of amendments to the budget resolution were being offered by House members eager to get themselves on television. O’Neill was quoted at one point as telling his colleagues that he had “made a terrible mistake” in allowing House telecasts.Ronald Garay 1984 Congressional Television
Note: Tip O’Neill was the main proponent of the 1970 Legislative Reorganization Act and televising House proceedings. Here he admits it was a terrible mistake.
Speaker, Tip O’Neill, continued his criticism [of televising House proceedings] a few weeks later. This time, prompted by the number of House members who were “taking to the floor to praise people in their districts by name, compliment trusted staff members and give speeches on purely local issues,” O’Neill called the effects television had had on the House a “disaster.” He noted that by the first week of August 1979 the Congressional Record contained 7,000 pages in transcripts of House floor proceedings – a 25 percent increase in pages over the same period during the previous year.Ronald Garay 1984 Congressional Television
Note: This comment about it being disaster comes with some painful irony as Tip O’Neill was the main proponent of the 1970 Legislative Reorganization Act and televising House proceedings.
Facing unprecedented exposure to public observation, members of Congress are now more prone to take unyielding stands on behalf of attentive constituencies (special interests) and to defer to uninformed prejudices of the general public.Paul Quirk 1991 Evaluating Congressional Reform
According to a 1981 estimate, about 85 percent of the FOIA requests filed with the Food and Drug administration came from companies it regulated. These companies sought information for court cases against government, or information about competitors’ activities. (The Rising Hegemony of Mass Opinion)Paul Quirk & Joseph Hinchliffe 1996 Loss of Confidence: Politics and Policy in the 1970s
The House Leadership resisted televising floor debate on the grounds that it would interfere with the orderly conduct of business and reduce the quality of deliberation. A few members voiced concern that broadcasting floor proceedings would change the House “from a forum to a theater.” But the popular appeal of a measure to increase openness gave the advocates of television coverage a decisive advantage. Reportedly, many members who feared harm to the deliberative process felt uncomfortable expressing that fear. Understandably so: To say that allowing the public to observe floor debate reduces the quality of deliberation does not pay the public a compliment. Broadcasting congressional proceedings was “one of those motherhood issues,” a congressional aide observed: “No one wants to come out against it.Paul Quirk & Joseph Hinchliffe 1996 Loss of Confidence: Politics and Policy in the 1970s
Even on bipartisan measures, House and Senate leaders prefer to manage all the bargaining behind closed doors. With no ideological sweet spot linking the parties, successful deals require “win-win” bargains: Each party gets its top priority and, in exchange, allows the other party to get its top priority. But negotiating win-win deals requires secrecy. If information leaks out about the less popular parts of a deal before the various constituencies hear about the parts they want, the entire negotiation can blow up. Closing the doors lets negotiators knit together an entire agreement before shaking hands.Sarah Binder 2017 McConnell’s Secretive Lawmaking
Putting things behind closed doors facilitates compromise that might not be possible out in the public’s eye… If our ultimate goal is to actually solve public problems, my approach is to give legislators the space they need in order to craft those deals.Sarah Binder 2017 Watchdogs Say Transparency Efforts Fall Short
If the (appropriations) committee did not close its sessions out of self protection, the agency lobbying would be horrific.Steny Hoyer 1993 Public Business without Public Access
Too ‘open’ a presidency can build impossible expectations, induce claimants to bypass channels of access to departments and to Congress, clog the President’s information system, and preclude that measure of confidentiality necessary for face-saving negotiations.Stephen K. Bailey 1968 Agenda for the Nation (Brookings)
‘Sunshine’ laws have opened committee hearings to the gaze of the public, or more frequently in practice to lobbyists.Graham Wilson 1981 Interest Groups in the United States
FOIA laws were sold as mechanisms of democratic accountability, but in reality most FOIA requests are made either by citizens looking for specific information about themselves or by businesses and other organizations looking for information about their competitors...Contrary to the naive sirens of maximum democracy, greater transparency is as much a problem for good governance as it is a solution.Bruce Cain 2014 The Transparency Paradox
There is nothing fundamentally wrong with the desire for private conversation – even among public officials… It’s time to let common sense reign and let government personnel communicate with each other through the medium of their choosing with a presumption of privacy.Matt Yglesias 2016 Against Transparency
Secrecy is an important shield for conferees [members of congressional conference committees] against pressures from outside.Jeffrey L. Pressman 1966 Bicameral Politics (Longley & Oleszek)
Daniel Dreyfus, staff director of the Senate Energy Committee, echoed Senator Hatfield’s remarks in commenting, “Since we opened up the doors, there has been a lot of time wasted in [committees]. In the old days, someone would say, ‘I know I’m going to lose on this item, so let’s just go ahead.’ Now, with a gallery there, they hold on for weeks trying to show they’re hanging tough.” The result is that under the watchful eye of lobbyists, [lawmakers] tend to fight harder for provisions they might have dropped quietly in the interests of bicameral agreement.Lawrence Longley & Walter Oleszek 1989 Bicameral Politics (how sunshine creates gridlock)
Many changes in conference committee proceedings were predicted to result from their opening. Among these were decreased efficiency in reaching agreements, an increased tendency for conference members to grandstand and play to the press, a wider use of secret meetings and caucuses to work out compromises awkward to negotiate in public view, and a greater tendency for conferees to argue for external interests and constituency concerns.Lawrence Longley & Walter Oleszek 1989 Bicameral Politics - Conference Committees in Congress
The lack of transparency in the convention’s agenda probably influenced the cast of characters who came to Philadelphia. The lack of transparency within the convention itself probably influenced its handiwork. Because they met behind closed doors and had bound themselves to an oath of secrecy, the delegates were able to candidly express opinions that, had they been declared publicly, would have immediately mobilized resistance and probably would have had deleterious consequences for their public careers.
Critics of the Constitution later complained of the convention’s having met in “secret conclave,” claiming that resistance might have developed sooner had the deliberations been public. The “genius of aristocracy,” they charged, had “prompted the convention [delegates] to enjoin secrecy on their members, to keep their doors shut, their journals locked up, and none of the members to take any extracts.” Jefferson criticized the convention’s secrecy as manifesting “ignorance of the value of public discussions,” but the delegates knew full well what they were doing: To open their proceedings to the public could kill their nationalist and antipopulist project before it had legs. Madison almost certainly was correct when he later observed that “no constitution would ever have been adopted by the convention if the debates had been public.” The secrecy of the convention’s proceedings was in stark contrast to the constitutional requirements of the very state in which the delegates assembled— namely, that legislative deliberations be conducted in public and that the Pennsylvania Assembly’s votes and proceedings be published on a weekly basis. Michael J. Klarman 2016 The Framers’ Coup
Madison defended the open-ended secrecy provision in the clause [of Article I, Section 5] requiring the publication of congressional journals on the grounds that it was impossible to enumerate everything that ought to be kept secret.Michael J. Klarman 2016 The Framers’ Coup
To speed progress [of the 1990 Clean Air Act] much of the negotiations during mark-up proceeded behind closed doors. On 22 March 1990 members emerged to report that a compromise had been agreed on urban smog which divided the worst polluted area of the country into categories based on the severity of their pollution and established methods to bring them into compliance with health standards.Christopher J. Bailey 1998 Congress and Air Pollution (Climate)
Although [George] Mitchell and Baucus believed that a majority of senators would vote for the Committee bill [on the 1990 Clean Air Act], they did not believe that they had sufficient votes either to invoke cloture if someone like Senator Byrd decided to filibuster the measure or to override a potential presidential veto. They decided as a result to work with the Administration to produce a compromise. A month of negotiations followed in which Mitchell and Minority Leader Dole, a few members of the Environment and Public Works Committee, EPA officials and White House officials led by Roger B. Porter met behind closed doors to fashion legislation acceptable to both sides. The result was a substitute bill that steered a middle line between the original Committee and Administration bills. It phased in automobile exhaust emission reductions, mandated a study of the best way to assess the health risk of air toxics after MACT had been installed, and provided midwestern utilities with extra sulphur dioxide ‘allowances’ which could be sold to defray the costs.Christopher J. Bailey 1998 Congress and Air Pollution (Climate)
When conferences were in executive [closed] session, members didn’t have to pound the table and make speeches they hope will be reported back hom. They could sit there and say, “You know where I sit and I know where you sit so we’ve got to compromise.”Senator Mark Hatfield (R.Or) 1979 Bicameral Politics (Longley & Oleszek)
Instead of waiting in uncomfortable corridors, lobbyists and reporters… now wait in uncomfortable committee rooms, mostly small old ones in the Capitol designed for private meetings.Adam Clymer 1977 Bicameral Politics (Longley & Oleszek)
In the real world of American politics, interested individuals and organizations, not average citizens, have the greater incentive and means to monitor the government closely. This can open the door to obstruction and policy distortion as it enables regulatory capture by interested parties who advocate freely for their views without any countervailing public voice.Bruce Cain 2014 The Transparency Paradox
There continues to be a dearth of studies empirically testing the theoretical claims of transparency advocates, even as legislation and institutional support for their case accumulates exponentially.Amitai Etzioni 2010 Is Transparency the Best Disinfectant?
Professor Frances Lee of the University of Maryland political science department said that certain practices that have been undertaken in pursuit of transparency can impair legislative deliberation since they disproportionately allow outside interest groups to influence decision makers and they incentivize Members to focus on public-facing messaging rather than negotiating with colleagues… Lee was not the only person to highlight the unintended consequences that greater openness brings. Representative Emanuel Cleaver (D-MO) noted how important civil rights legislation passed Congress due to closed-door negotiations. “I’m not sure that Lyndon Johnson would have been able to get the civil rights bill or the Voting Rights Act approved if the world was involved in hearing and viewing his interactions, and the deal making…that took place to get that done,” he said.Mark Strand 2019 Hearing on Legislative Transparency
The reasons for these closed-door negotiations are many. Politicians’ egos make it difficult for them to compromise in public or, in some cases, reveal how much they rely on staff. Their task is made more difficult by the legions of lobbyists looking over their shoulder and trying to influence decision-making. And conferees frequently are required to check back with caucus leaders before striking any compromises, particularly on major bills.Steven Dornfeld 2014 Minnesota’s legislative process: An open-but-shut case
Rolling television coverage of Congress has been linked by many to the decline of deliberation in that body. Rather than debating with colleagues, members of Congress are in fact addressing activist audiences but in the media ether.Francis Fukuyama 2015 Why Transparency Can Be a Dirty Word
[On February 21, 1973] the caucus voted to open committee sessions to the public unless a majority voted to close a particular session. This allowed the public, primarily lobbyists and journalists, into “markup” sessions for the first time, where the essence of the legislative process took place, where bills were drafted line by line, clause by clause.John Jacobs 1997 Rage for Justice - Phillip Burton
Because I can see exactly how you vote, you can easily sell your vote to me. Enter anonymous voting, which made it impossible legally for me to be confident about how you, the voter, votes. No doubt, you could promise me that you’ll vote as I wish, but you could just as well promise the same thing to the other side. The price I’d be willing to pay, then, for your vote is much, much less (discounted for the possibility that you’ve also sold your vote to the other side). And by lowering the price, this ingenious reform lowered the significance of vote buying [campaign finance?] substantially.Lawrence Lessig 2011 Republic Lost
Indeed, the push for more transparency [in the European Union legislature] is often advocated by lobbyists themselves, eager for legal clarity and happy to present themselves as fulfilling a vital role in modern democracies through the information they provide to policymakers.Harry Cooper 2017 Politico
American politics is vastly more transparent than it was a few decades ago. That sounds great, right? In many cases, it is. But there’s a reason corporations don’t webcast their negotiations when they’re considering a merger and families don’t hit “record” when they’re having a fight. Sometimes, it’s easier to resolve disputes in private… It used to be that politicians could try and work out deals in private and then sell them in public. Now the deals essentially get worked out in public — which means it’s far easier for a delicate discussion to be crushed as fuzzy reports leak and enraged interest groups blitz the proceedings.Ezra Klein 2013 Too much Sunshine can Burn
Both Madison and Hamilton, then, did not think secret sessions of the national legislature antithetical to the spirit of republican government. Although the government, they might have said with Lincoln, is of the people, by the people, and for the people, it is a government in which the people do not directly participate. The people, according to the First Amendment, have the right “to petition the government for a redress of grievances,” but they do not have the right to know about all the deliberations that take place in Congress. Although Article 1, Section 3, of the Constitution requires each House to keep a journal of its proceedings, it also allows that each House may leave out “such parts as may in their judgment require secrecy…” The Founding Fathers did not extol secrecy, but neither did they rule it out. And they probably would have had grave reservations about the spate of laws enacted in the mid-1970s that make the American government the most open government in history. Stephen Miller 1983 Special Interest Groups in American Politics
The supposition that transparency uniquely empowers regular folks is quaint fantasy. By and large, those combing the public records and filing information requests are not your neighbors. Generally, they are junior associates at big law firms searching for some detail that can be used to challenge a federal decision that is at odds with their client’s interests… The popular distrust of government officials has taken a toll on a political system that requires the collaboration of divergent interests. It is time to dispel the simplistic notion that transparency in government is an unmitigated good and recognize the role of privacy in nurturing honesty, creativity, and collaboration.Jason Grumet 2014 The Dark Side of Sunlight (City of Rivals)
While members of Congress are indignant whenever an administration from the other party takes steps to protect the privacy of its decisionmaking, Congress doesn’t embrace the unadulterated value of transparency when considering its own deliberative needs. A recent example of that hypocrisy was revealed when certain members of the legislative branch began to explore changes to the nation’s tax code – a body of legislation that has not been seriously amended since 1986. In the spring of 2013, senators Max Baucus (D-MT) and Orrin Hatch (R-UT), who led the Senate Finance Committee, sought to conduct a wide-ranging review of ideas to improve the complex US tax system. They proposed starting from a “blank slate” and asked their colleagues for suggestions. They were not seeking detailed proposals or any commitments of support – just ideas to begin a deliberative process. They received no responses. Not a one. No member of Congress wanted to be on record calling for either the elimination or continuation of a tax provision favored or reviled by anyone. So to prompt more meaningful input, the senators wrote a memo to their colleagues on July 19, promising that any records of lawmaker suggestions would be locked in a safe near Capitol Hill. Baucus and Hatch promised that any ideas written and transmitted to them would be transferred to the National Archives and stored in a special vault, separate from the committee’s other records, and sealed until December 31, 2064. Though widely ridiculed for its absurdity, the plan worked and the committee received over one thousand pages of proposals.Jason Grumet 2014 The Dark Side of Sunlight (City of Rivals)
Institutional systems characterized as open and accountable should exhibit higher levels of direct lobbying and a broader range of inside lobbying tactics, as policymakers in those systems are driven by the reelection motive to be receptive to communications from advocates about the views of their constituents. Thus, advocates in the United States are expected to display higher levels and a broader range of inside lobbying tactics.
In addition, the role of democratic institutional design should also be perceived within a polity by investigating inside lobbying across the primary political institutions of the political system. Thus in the United States, the U.S. Congress, the most open and accountable of U.S. institutions, should be the object of more inside lobbying than executive agencies or the White House. In the European Union, the Council, the most nontransparent and unaccountable of EU institutions, should be the object of the least amount of inside lobbying.Christine Mahoney 2008 Brussels vs. the Beltway
Legislators may also wish to signal their loyalty (or the disloyalty of political opponents) to other actors outside the legislature that control valuable resources. Important examples of such actors are lobbying groups with policy expertise, selectorates that nominate candidates, and potential campaign donors and other activists for the next election campaign (with the latter likely coming from what Fenno 1978 calls the “primary constituency”).Reto Wüest 2016 Roll Call Votes in Democratic Legislatures
It is our duty to vote to hold a meeting behind closed doors when that becomes necessary either to protect national secrets or to reduce the power of an organized group to try to stampede the committee.Finance Committee Chair, Russell Long 1973 Advocates of Openness (Kennedy)
If transparency is not reduced to what it is, a means, it is a threat, so that democracy has realized the dream of totalitarianism. The demand for excess transparency is no longer the quintessence of democracy, but rather its direct opposite.G. Carcassone 2001 Le Trouble De La Transparence
Long said open committee meetings would mean more pressure from organized lobbies trying to force a decision in their direction… “There are times,” he told the Senate, “when the Committee on Finance is going to have to close its doors to protect the interests of the country and discharge its obligations. It is our duty, to vote to hold a meeting behind closed doors when that becomes necessary either to protect national secrets or to reduce the power of an organized group to try to stampede the committee. The Senate should not make it any more embarrassing and difficult than it needs to be to arrive at this result.”Finance Committee Chair, Russell Long 1973 Senate, House Modify Secrecy Rules
“Every time action is taken to close the session,” said John O. Pastore (D R.I.), ranking Democrat on the Commerce Committee, “it raises an atmosphere of suspicion that the committee has something to hide. That is the thing that disturbs me.” He said senators would be reluctant to close even those hearings which should be closed and that classified information might be revealed. “When you tell me you are mandating to open up these hearings to the public,” Pastore declared, “I am afraid we are playing footsies with the security of this country.” Ranking Member on Commerce – John Pastore (D R.I.) 1973 Senate, House Modify Secrecy Rules
The temptations of television are seductive, but they may also be destructive. The risks are many and serious. Instead of informing our people, televised House proceedings may confuse them. Instead of educating it may bore them and make them impatient. Instead of polishing the image of the House, the consequences of broadcasting may further tarnish it. Instead of maintaining the dignity of the House, television may encourage circus antics. Instead of improving the legislative process, television may degrade it. And instead of enhancing the democratic process, television may corrode and cheapen it.Rep. Del Clawson 1976 Congress and the People
As for special interest representation, the nation’s capital is filled with lobbying groups and associations. There are scores of industry associations, public affairs lobbies, single-interest groups, and many other advocacy organizations. Special interest groups are major policymaking players… Many interest groups also are informally affiliated with one party or the other, and their demands for loyalty make it difficult for lawmakers to compromise. Ironically, some of the sunshine reforms of the 1970s had the unintended consequence of strengthening the role of special interests.Walter Oleszek 2011 Secrecy and Transparency
Members of committees naturally try to close committee sessions from public purview, limiting thereby the intrusion of external actors such as interest groups or executive agencies and thus protecting committee members’ independent exercise of power within committees. Lawrence Dodd 1977 Congress Reconsidered – 1st Ed
The effort to reduce congressional insulation has hardly fared any better. It has produced one victory of sorts—the sunshine rules that have opened virtually all committee meetings. The open hearings, and the widespread publicity of some meetings, may well have increased somewhat the public’s respect for Congress. [But] even this victory has had its price, in making committees more susceptible to intrusion by powerful external groups, particularly executive agencies, intrusion that may undermine congressional autonomy.Lawrence Dodd 1977 Congress Reconsidered – 1st Ed
In 1970, the US Congress radically changed its approach to governance, by opening virtually all congressional hearings to the “public” under a movement generally known as “Sunshine Laws.” This change was a radical departure from precedents set by the founding father who jealously guarded legislative privacy, understanding that “factions” (18th-century terminology for special interests) would form and work against sound public policy to their own benefit.
Corporate and other special interests, including foreign dictators, have a decided advantage over public interest under this system of lobbyist access to the legislative process, subjecting people’s representatives to whims of deep-pocketed special interests, and creating a strategic weakness for America. On everything from healthcare, military spending, education, pharmaceuticals, and foreign policymaking, legislative scorecards, and the financial incentives associated with campaign donations and future jobs have turned our members of Congress into short-term thinkers, effectively forced to accept “Judas Money,” while giving our global opponents and adversaries, as well as domestic special interest a decided strategic advantage over us.Joshua Burgin 2020 Why the US must put lobbyists back in the lobby!
Most committee staffers and MLAs agree that the closed markup in SASC results in a more efficient and candid policymaking process. Without reporters or lobbyists in the room, Senators are free to debate difficult decisions and make deals without the pressures to posture or conform to narrow ideological or parochial views. …The closed markup allows Senators with those concerns to sometimes craft a deal with others on the committee that would have been politically impossible if lobbyists or reporters were present. Compromise often requires some degree of anonymity, and certainly the closed markup in SASC is testimony to that reality. [Many staffers] are highly skeptical about the benefits of an open process. While increased transparency is certainly valued, many believe an open process would undermine vigorous and frank debate, and also frustrate compromise and bipartisanship.Colleen Shogan 2011 The Senate’s Last Best Hope
A former SASC staff director explained, “Senate Armed Services has never had an open markup, and I’m proud of that...Why should we do it in the open? It would wreck the seriousness of the purpose. Staff needs to give candid views to Senators, and you can’t do that in open session. Governing in the sunshine shouldn’t be applied to everything. In the House, open markup forces cutting deals behind closed doors” (Interview with Arnold Punaro, 3/10/2011). Another argument focuses on efficiency. Whereas the entire markup process is usually completed in one week, there is general agreement that an open process would extend markup considerably. One MLA remarked that the two-day full committee markup could last for more than two weeks if it was opened to the public (Interview with Senate staffer, 1/20/2011). Another staffer concurred, “The effect of the closed session is that the lobbyists don’t know about the bill until it comes out. Coming up with a deal is a lot harder when an amendment is made public and circulates all over this town” (Interview with Senate staffer, 1/13/2011).Colleen Shogan 2011 The Senate’s Last Best Hope
These results demonstrate that individuals and groups interested in increasing the likelihood that politicians identify and pass compromise deals need to find a way to insulate the elected officials during the negotiation phase. [Our] evidence indicates that politicians can and should be given some privacy during the negotiation process so they can consider effective compromise solutions.Anderson, Butler, Harbridge-Yong 2018 Closed-Door Compromise
The number of important changes affecting Congress over the last three decades is remarkable. They include: the transformation of the U.S. Senate from an encapsulated men’s club, a “citadel” in the description of one of its observers, into a publicity machine operated for the purpose of linking senators with national interest groups and factions.Nelson Polsby 1982 Contemporary Transformations of American Politics
The state of Virginia allows cameras into court to demystify the legal process, so that everyone can see what is happening. Far from putting the public at ease that justice is being done, however, they have turned the court room into a gladiatorial arena. We can watch with morbid fascination as two people rip chunks out of each other, cheering as someone we don’t know and have never met strikes a blow.Elise Johnson 2022 Cameras turn the court room into a gladiatorial arena
Sinclair writes that the Senate has been transformed from a committee-centered, member expertise dependent, inward looking, and relatively closed institution that was characterized by an unequal distribution of influence and constraining norms to an open, staff dependent, outward looking institution in which influence is much more equally distributed and members are accorded very wide latitude. Sinclair argues that as a result of these changes the Senate of today can encounter great difficulty in making decisions. Nelson Polsby has called the Senate a publicity machine operated for the purpose of linking senators with national interest groups and factions. Al Kaltman 2017 Leadership
What is striking about the making of air pollution policy in the European Union, however, is that while it has undoubtedly been a difficult process, the Council of Ministers has been able to arrive at compromises and adopt legislation far more easily than has the U.S. Congress. Legislation addressing the issue of acid rain and vehicle emissions was agreed to far more quickly than was the Clear Air Act of 1990. Those attributes that the U.S. Congress adopted to make the compromises that ultimately led to success – secrecy, bargains, and side payments – have been intrinsic to the way the Council of Ministers works.Alberta Sbragia 2004 The United States and the European Union Compared (Climate)
The high court caught her spirit, finding her anonymity “a shield from the tyranny of the majority,” honored by the Founding Fathers themselves when they didn't sign their right names to the Federalist Papers.New York Times 1995 Protecting Anonymous Speech
There are numerous ways besides casting a vote on the House or Senate floor for a member of Congress to show gratitude for a contribution. One, of course, is to cast a vote a certain way in committee or a subcommittee. Another is to try to block action in a committee or a subcommittee. Another is to cast a vote a certain way on a certain amendment in a subcommittee – or even to refrain from casting a vote – so as to shape a piece of legislation in a certain direction, and then cover one’s tracks by voting for approval of the legislation. Still others are to delay a bill until time runs out or to load it up with amendments until it collapses of its own weight. It is not uncommon for a member to say to a colleague, or for a lobbyist to say to a member, “Look, I know you can’t be with me on the final bill, but would you do me a favor on this one amendment?” A member may go along out of sheer comradeship, but if he feels an obligation he will try to oblige. The fact that committee meetings (with the exception of those involving national security) are now held in the open – a reform that was adopted in the mid-seventies – has strengthened the lobbyists’ hand and reduced the legislators’ ability to legislate. The idea was to make the members more accountable for the actions they took in committee, and it was a good one, but it carried a price. The lobbyists used to have to stand around in the corridors and wait to hear about what had happened inside. A member could come out and tell the lobbyist he had done as well as he could for him but couldn’t get everything the lobbyist wanted. Members could quietly make trade-offs with each other inside the committee room, where there was at least more of a chance that a member would exercise independent judgment. Now the lobbyists sit right in the committee room, keeping score. Sometimes they even signal to a member how to vote on a certain amendment. During the House-Senate conference between members of the Ways and Means and Finance Committees on the 1982 tax-increase bill, the large Ways and Means Committee room had an overflow crowd.Elizabeth Drew 1983 Politics and money: the new road to corruption
Sarah Binder 2013 - How Secrecy Enables Win-Win Negotiations
“You have to be out of the public eye to make agreements stick...We argue that the long term policy gains, if not the short term policy gains might be worth the political cost of closing the doors.”
Through skillful use of public arenas (transparency), a nonmember (lobbyist, special interest) may be able to pressure committee members to take up an issue they would rather ignore… Not only can nonmembers often influence the shape of legislation, they can often influence committee agendas.Barbara Sinclair 1989 Transformation of the US Senate
The authors discuss the importance of closed-door negotiations for successful legislative compromise. Using experimental data collected from state legislators, the authors demonstrate that lawmakers expect private negotiations to result in successful compromises more often than public negotiations.Anderson, Butler, Harbridge-Yong 2018 Closed-Door Compromise
In both studies, subjects compromised less when "performing" before an audience of constituents than when no audience was present during negotiations.Daniel Druckman 1994 Determinants of Compromising Behavior in Negotiation
Transparency often imposes direct costs on successful deal making, public attention increases the incentive of lawmakers to adhere to party messages, a step rarely conducive to setting aside differences and negotiating a deal.Sarah Binder & Frances Lee 2013 Political Negotiation
The rarity with which House and Senate leaders can secure privacy complicates negotiations in Congress.Sarah Binder & Frances Lee 2013 Political Negotiation
Secrecy serves as an antidote to intimidation, permitting legislators to vote sincerely without fear of reprisals from their peers. Even if a legislator is not personally corrupt and is convinced his accused peer is corrupt, he might nonetheless avoid voting to expel his peer, fearing retribution of some sort. So it may be that secrecy serves as a “shield,” enabling politicians to challenge powerful legislative leaders or party bosses in ways that would be unthinkable in an open vote. Indeed, a variety of procedures – e.g., juries, trade agreements, constitution writing, admissions committees (Chambers 2004; Elster 2010) – may benefit from “shielding” participants from the public or from particular audiences, such as the injured or losing parties.Michele Buttò, Carlos Pereira & Matthew Taylor 2014 Sunshine or Shield? Secret Voting Procedures and Legislative Accountability
The simulation also casts doubt on sunshine approaches to accountability that assume transparency is always the best remedy. While we are cautious in drawing conclusions from the simulation, it does show that under certain simulated conditions, open voting may be less effective than secret voting in driving accountability. If nothing else, this suggests that further research about the effects of open voting is warranted, and that it might be worth contemplating different rules depending on who is being tried, such as secret voting during the legislative trials of congressional leaders, and open voting for backbenchers.Michele Buttò, Carlos Pereira & Matthew Taylor 2014 Sunshine or Shield? Secret Voting Procedures and Legislative Accountability
A senator periodically receives a record showing the number of times, by percentage, that he or she has voted with each of the other 99 senators. When I first came to the Senate, there were Democrats mixed in with Republicans and vice versa. Today, except for procedural votes, or what are often called throwaways, it’s rare for more than two or three senators to cross party lines on a vote. Nothing could more starkly demonstrate the fog of partisanship that has enveloped the Senate.Senator Dale Bumpers 1999 How Sunshine Harmed Congress
While most of the [increases in transparency] Congress made during this period were not in response to any great outpouring of public sentiment – more than one observer has noted that “congressional reform has no constituency” - they did have the support of various interest groups as well as of editorial writers and columnists.Donald Wolfensberger 2000 Dawning of the Sunshine Seventies
Bentham’s idea is that secret voting should be used in assemblies when, but only when, “circumstances render a hidden influence suspected.” In such circumstances, open voting allows credible commitments by voters to third parties who can corrupt the voters with threats or bribes, and open voting will produce falsification of preferences or judgments. Hence “to demand a ballot, is to appeal from the apparent to the real wish of the assembly.”Adrian Vermeule 2010 (Harvard Law) Open-Secret Voting
Closed sessions are held because members have expressed the feeling that they can arrange compromises more easily when lobbyists cannot watch their every move and every decision does not have to recorded formally.Spencer Rich 1985 (WaPo) Hill Panels’ ‘Sunshine’ Starts Clouding Over
The idea that Washington would work better if there were TV cameras monitoring every conversation gets it exactly wrong. We don’t need smoke-filled back rooms, but we must protect the private spaces where people with different points of view are able to work through their disagreements. The lack of opportunities for honest dialogue and creative give-and-take lies at the root of today’s dysfunction.Senator Tom Daschle 2014 City of Rivals
We’ve probably gone too far in the direction of transparency in a number of government deliberative processes.Lee Drutman 2016 Chaos of American Politics
Behind closed doors, lobbyists don’t know everything that is going on.Richard Cohen 1994 Washington At Work
The primary effect of opening committee meetings is that it gives lobbyists more information, and thus more power. It makes lobbying—the art of influencing government officials—a more effective, scientific discipline. It makes it harder for representatives to shake off the cajoling of lobbyists with a friendly white lie. It allows lobbyists to prove to their principals at the home office, with hard data, that their efforts pay off, that investment in legislative influence can be profitable.Brent Ranalli 2017 Sunshine Reforms and Transformation of Congressional Lobbying
My colleagues think AIPAC is a very, very powerful organization that is ruthless, and very, very alert. Eighty percent of the senators here roll their eyes on some of the votes. They know that what they’re doing isn’t what they really believe is right, but why fight on a situation where they’re liable to get beat up on?Anonymous US Senator 1991 Washington Post Interview by Lloyd Grove
The basic message is clear: any senator or representative who crosses AIPAC [the Israel lobby] is playing with fire… As one congressional source put it in 1991, “Voting against Israel has become like voting against lumber in Washington state, except AIPAC does it all over the country.”… and why Jimmy Carter said in February 2007 that “I don’t see any present prospect that any member of the US Congress, the House or Senate, would say, ‘Let’s take a balanced position between Israel and the Palestinians and negotiate a peace agreement.’” He added, “It’s almost politically suicidal… for a member of the Congress who wants to seek reelection to take any stand that might be interpreted as anti-policy of the conservative Israeli government.”John J. Mearsheimer & Stephen M. Walt 2007 The Israel Lobby and US Foreign Policy
The intimidation factor is alive and well on Capitol Hill, where most members, while privately resenting the pressure, dutifully toe the Israeli line. If voting were kept secret, I am confident that aid to Israel would have long ago been heavily conditioned – if not terminated – in both chambers.Rep. Paul Findley 2003 They Dare To Speak Out
The results demonstrate that the failure of previous research to analyze interaction effects have led scholars to draw inadequate and misleading conclusions about the link between transparency, democracy and corruption… Fisher, Ury and Patton even claim that “a good case can be made for changing Woodrow Wilson’s slogan ‘open covenants openly arrived at’ to ‘open covenants privately arrived at’”, arguing that negotiators will produce wise agreements more easily in private than in public.Catharina Lindstedt & Daniel Naurin 2005 Transparency and Corruption
Note: Despite his comments, Wilson was hardly a fan of transparency. As President he conducted many of his most celebrated actions in secret, using guards at the doors of meetings to insure executive deliberations. Wilson also authored these words which embrace secret deliberations in Congress: “Rather than imprudently expose to the world the differences of opinion threatened or developed among its members, each party hastens to remove disrupting debate from the floor of Congress, where the speakers might too hastily commit themselves to insubordination, to quiet conferences behind closed doors, where frightened scruples may be reassured and every disagreement healed with a salve of compromise or subdued with the whip of political expediency.”
For a striking example of how the public and Congress as a whole can be kept in the dark about significant policy conflicts, one need look no further than to the long-drawn-out mark up and conference sessions on the 1972 water pollution act. Important policy questions were being debated: the amount of money needed for pollution abatement; the right of citizens to bring mandamus actions against complacent pollution control agencies; and the question of zero discharges of pollutants as a policy goal. Yet the House Committee on Public Works held mark-up sessions over a period of 3 months, all in closed session, with no official information given out until the pollution control bill was finally reported-2 weeks before the House acted on it.Luther J. Carter 1973 Secrecy in Congress: Tiptoeing toward Reform (Climate)
Is it possible that opaque ‘backstage’ areas of politics may in fact, under some circumstances, be more civil in the deliberative sense—more characterised by arguing with reference to public interests and ideals and less affected by self-interested bargaining and pressure politics—than the public ‘frontstage’? At the least, Joerges and Neyer’s and Eliasoph’s findings demonstrate the prevailing ambiguity about the effects of transparency and publicity on political behaviour. Daniel Naurin 2007 Deliberation Behind Closed Doors
“Scholars must recognize that election fraud, whatever its precise level or influence, was a common characteristic of Gilded Age elections.” According to Argersinger, the existence of three factors created an environment ripe for electoral fraud during this period: “electoral competitiveness, partisan or weak institutional arrangements [e.g. no secret ballot], and an ‘indulgent’ political culture.”Gail Buttorff 2008 Detecting Fraud in America’s Gilded Age
Finally, Members of Congress have been threatened, with varying degrees of subtlety, by lobbyists backed by big-dollar PAC’s. For example, a maritime union lobbyist sought Representative Leon Panetta’s support for a bill by saying, “I don’t have to tell you anything substantive – we gave you money. We support the bill, and we expect you to.”Joan Claybrook 1983 Hearings on Campaign Fiance Reform
Arguments against more transparency while merited in a few instances are often not only limited in application, but fundamentally flawed.Vishwanath & Kaufmann 1999 Toward Transparency
Because the law [FOIA] has been a bigger boon to business than to the media and public interest groups, skepticism about its value developed almost from the day the law was signed. Skeptics have turned the Madison quote against FOIA. In 1995, a Duke Law Journal article by Amy Rees examined what she viewed as the act’s unmet aims. For her, the commercial use and public-interest disuse of FOIA has become the “Farce or a Tragedy; or, perhaps both.” Michael Doyle 2002 Misquoting Madison
FOIA is celebrated as the source of groundbreaking investigative journalism, but it was businesses that seized on the act, as the Congressional Research Service discovered in a 1972 survey. Of 1,503 requests identified by the service, 43 percent came from corporations or law firms. Only 6 percent came from the media. A generation later, the statistics are similar. In fiscal 1998, the Environmental Protection Agency received 21,220 FOIA requests. Only 1 percent came from the media and 2.4 percent came from public-interest groups, while 88.6 percent of the requests were classified as “commercial.” Michael Doyle 2002 Misquoting Madison
FOIA imposes additional political and agenda-setting costs on agencies by giving those who oppose their work a low-cost tool with which to harass and embarrass them. Businesses and trade groups threatened by a new regulatory or enforcement policy use FOIA to “dig up dirt” on the policy and the people behind it. They also use FOIA to extract large volumes of background documentation, which they then communicate back to the agency in an effort to “overload” its staff and shape the administrative record. Nonprofit organizations that object on ideological grounds to an agency’s mission or its leadership employ similar tactics, backed up by a continuous succession of FOIA lawsuits. These tactics often have a partisan valence.David Pozen 2017 Freedom of Information Beyond the Freedom of Information Act
On the libertarian right, FOIA is celebrated as a means to impede “the Statists” at disfavored agencies through “witch hunts” and “fishing expeditions.” The conservative Judicial Watch foundation came to prominence over the past two decades largely by using FOIA to “trip up” Democratic officials. Freedom Watch now plows the same ground. There is no comparable outfit (Civic Solidarity Watch?) on the progressive left. In the environmental area, FOIA-fueled witch hunts and fishing expeditions have become so serious that a legal defense fund was established in 2011 to help climate scientists fend off “malicious freedom of information act requests.” These oppositional uses of FOIA not only exacerbate diversion and deliberation costs but also alter the political sociology of agency action, making it harder for administrators to formulate and carry out affirmative agendas of all kinds.David Pozen 2017 Freedom of Information Beyond the Freedom of Information Act
The government-in-the-sunshine movement may have had its greatest effect on deliberation in the committee markup stage. When these sessions were secret, congressmen were not strictly accountable for their opinions and actions on the details of a legislative proposal. They had little reason to fear offending a powerful constituency or interest group if they failed to back their requests in every respect. Now these same groups are actually present during the line-by-line reworking of the bill. They can monitor the congressman’s actions on every vital point. It is hard to imagine how any truly deliberative process – of openness to information and argument, of reasoned give and take, and of education on the substance of policy – can occur in such an environment.Joseph Bessette 1982 Is Congress A Deliberative Body?
Despite the general perception that lobbyists prefer opacity with regards to the disclosure of their activities, the OECD’s surveys show that the majority of surveyed lobbyists support mandatory disclosure of information.OECD 2013 Transparency and Integrity
In the back-room deals of the commission on Social Security, [author Paul Light] sees a model for Congress as it makes “painful choices” on other issues, such as budget deficits and Medicare, the health insurance program for 30 million elderly and disabled people… Social Security, he says, typifies a group of issues best dealt with away from the public spotlight. The commission was portrayed by members of Congress and journalists as a great bipartisan success, but in reality, the author contends, it “succeeded mainly as a front for secret bargains.” Members of the commission said in interviews that Mr. Light got the basic story right. The secret bargaining sessions were a way for the President and the Speaker of the House, Representative Thomas P. O'Neill Jr., to negotiate through proxies… Mr. Light’s thesis is that “a secret gang built a compromise, wrapped it in a bipartisan flag, and rammed it through Congress.” Robert Pear 1985 Concealing Dealing
The problem of what to do about pesticides had frustrated Congress for almost two decades, until members of my staff and the staff of Tom Bliley, a Virginia Republican, met secretly… One group absent from the proceedings was lobbyists.Rep. Henry Waxman 2009 How Congress Really Works
Robert Dove, the Senate parliamentarian, advised Chief Justice Rehnquist to close the deliberations in the Clinton [1999 impeachment] case because the Senate had always done it that way. Rehnquist relied on this tradition when he ruled against opening the deliberations. The Chief Justice also leaned heavily on rules enacted for the [1868 Andrew] Johnson impeachment.Marjorie Cohn 2000 Open-and-Shut: Senate Impeachment Deliberations Must Be Public
George Washington, president of the Constitutional Convention, stressed the importance of secrecy... In presiding over the Constitutional Convention, he worked to forge consensus, demanding complete secrecy as the delegates set about the controversial task of not just revising the Articles of Confederation, but scrapping them all together. One morning in June Pennsylvania delegate Thomas Mifflin spotted a copy of the Virginia plan, which the Convention had allowed delegates to copy, on the floor outside of the meeting room. He turned the errant document over to Washington, who placed it in his pocket and said nothing until the delegates were ready to adjourn for the day. Before putting the question on adjournment, Washington stood and sternly addressed the delegates.
“Gentlemen, I am sorry to find that some one Member of this Body, has been so neglectful of the secrets of the Convention as to drop in the State House a copy of their proceedings, which by accident was picked up and delivered to me this Morning. I must entreat Gentlemen to be more careful, least our transactions get into the News Papers, and disturb the public repose by premature speculations. I know not whose Paper it is, but there it is (throwing it down on the table), let him who owns it take it.”
Sen. Ben Sasse (R-NE) blasted senators on the Judiciary Committee on Thursday for what he said was “grandstanding for the cameras” at a hearing to review former special counsel Robert Mueller’s Russia investigation.
“It’s bullshit the way people grandstand for cameras in here,” Sasse told the committee. “The reality is if we didn’t have cameras in this room, the discussion would be different. The Senate doesn’t work. It doesn’t diffuse the partisan tensions that are leading the country toward dissolution.”
“Ninety percent of our committees are about people trolling for soundbites,” the senator added. “That’s what actually happens. Some of us have other work to do. People can troll for soundbites whenever they want.”David Edwards 2020 Profanity-laced rant on ‘grandstanding’
HOST MICHAEL GERRARD: I was struck by your description of the legislative process being largely behind closed doors and that there is a tension there, between that and the usefulness of that, and transparency. as you were just speaking about Mr. Jorling. So how does that function? Is there a sweet spot at which members need privacy to have these questions? Have we become too transparent?
TOM JORLING: Well, when we do talk about the differences between then and now one of, to me, is the most significant is the closed markup. The transparency comes because it’s going to be on the floor, [the bill] it’s going to be debated and it’s going to be voted upon. But the opportunity to learn and to dig deeply into a subject can’t be done in open forum. It’s as if you would put cameras in there which would automatically lead to people starting to play to their base and no longer be interested in trying to come up with a meaningful set of answers to difficult questions. It’s absolutely essential that they [legislators] have that that space to do that [debate and consider]. And I’ll mention one more thing and then Leon [Billings] can join. Senator Muskie had a very important method to developing legislation. If we would present what we thought were answers to some of the difficult questions, he would undertake to question us in the most aggressive and hostile ways, because his theory was if I can’t, if you can’t answer these questions, I can’t answer them on the floor when this matter gets into that part of the process. No one could do that if it was in open session and the cameras were there and the base was out there responding. He sort of taught that method to all of them because they all became adept at pressing us on whether or not what they were being asked to review or consider was meritorious. They would ask the most difficult questions that they could and if they didn’t get satisfactory answers they would send us back to the drawing board. So it [secrecy] was a very essential part. It also was an important part of the respect, if you would portray this fast forward [Senator] Eagleton and [Senator] Baker probably would have been aggressive contestants with each other if they were doing everything in public, but because they were in this space. They could challenge each other they could learn what was motivating each other it led to a kind of understanding that they weren’t out to try and game one another but rather to solve a public policy question. So I think it’s immensely important. I think the greatest result or the greatest poor result of Watergate was to quote reform the processes and they reformed them in a number of ways including to open up markups, but those reforms I think have been very damaging to the legislative process.
LEON BILLINGS: Senator Muskie was one of the leading advocates of sunshine laws. He opened one of his other subcommittees, where he had the authority to do that, early on in the process - and he was very strongly for that. And he found out, almost immediately, that some of the members couldn’t work well in that fully open environment. You see it now [2014] with this budget agreement that was just reached two-year budget agreement crafted in private, no public participation, no public gazing on the process came out and revealed it. Same thing happened three years ago four years ago in the 2011 debt extension legislation. So the congress is drifting back to that there it’s not the same committee structure that they had but clearly where comity is being achieved in the current political environment it’s being achieved behind closed doors not in open session.Leon Billings & Tom Jorling 2014 Interview on 1970 Clean Air Act - Benefits of Closed Door Sessions (Climate)
The bias of the author [Daniel N. Hoffman] is clearly and consistently opposed to government secrecy. In his final paragraph he writes, “The laws and judicial doctrines abridging political speech and publication should not be toughened, but repealed or overruled… their impact is not to protect the national interest but to maintain a rigid barrier between the rules and the ruled, those with and those without a ‘need to know,’ those with and those without access to the private, elite channels of influence and information.” Yet the historical record is not so clear on this point. Secrecy is at times very necessary for the national interest. As Madison wrote sometime after the Constitution had been adopted, “No Constitution would ever have been adopted by the Convention if the debates had been public.” Secrecy was also crucial in the ratification debate when the document was presented “as a grand design rather than a patchwork of compromises. This could hardly have been done if each provision were identified with the demands of a particular faction; the debate would then have tended to focus on the concessions made by each side rather than on the merits of the plan as a whole.” Hoffman argues that the convention was a unique case with little value as a precedent. I am not persuaded, particularly in foreign affairs and in volatile issues when bipartisan support is critical and special interests could wreck the process of compromise. The Supreme Court’s position that there is room for executive privilege in the constitutional system, with lines drawn on a case-by-case basis, still seems the best policy.Paul J. Webber 1982 Book Review - Governmental Secrecy and the Founding Fathers
Our negotiations for a comprehensive tobacco bill followed the same model as they had for the pesticide measure, utter secrecy of the proceedings guaranteeing both sides the political cover necessary to explore compromises. Only Newt Gingrich, the Republican speaker of the house, and Richard Gephardt, the Democratic minority leader, were kept apprised.Rep. Henry Waxman 2009 How Congress Really Works
The use of electronic voting in the House has also made it easier for interest groups to follow and grade members. The most famous of these scores are produced by the Americans for Democratic Action (ADA) and the American Conservative Union (ACU), but almost all interest groups create some kind of ‘score’ that shows how closely member votes align with the group’s position. These scores are invaluable for group members, who can use them when contacting their representatives or when deciding whether to support (finance) the incumbent in future elections (or funding the campaign of their competitor)… The adoption of electronic voting provided the majority leadership with powerful tools with which to influence legislative outcomes.Jacob Straus 2012 The Rise of Roll Call Votes
You just have to sort of figure out how to – getting back to that word, “balance” – how to balance the public and the private efforts that are necessary to be successful, politically, and that’s not just a comment about today. That , I think, has probably been true for all of our history, and if you saw the Spielberg movie, Lincoln, and how he was maneuvering and working to get the 13th Amendment passed, and he called one of my favorite predecessors, Secretary Seward, who had been the governor and senator from New York, ran against Lincoln for president, and he told Seward, I need your help to get this done. And Seward called some of his lobbyist friends who knew how to make a deal, and they just kept going at it. I mean, politics is like sausage being made. It is unsavory, and it always has been that way, but we usually end up where we need to be. But if everybody’s watching, you know, all of the back room discussions and the deals, you know, then people get a little nervous, to say the least. So, you need both a public and a private position.Hillary Clinton Wikileaks - HRC Paid Speeches
Mike Murphy, Fmr. Senior adviser to Mitt Romney and John McCain, tells MSNBC’s Andrea Mitchell that “One Republican senator told me if it was a secret vote, 30 Republican senators would vote to impeach Trump.” – September 25th, 2019
The U.S. Congress, although by definition democratic, used to function in a hierarchical and closed manner, at some distance from public pressures. Now it is a transparent body, utterly open to its constituents’ views and pressures. Congress has become a more responsive, more democratic, and more dysfunctional body.Fareed Zakaria 2003 Future of Freedom
The ballot laws of the Roman Republic (Latin: leges tabellariae) were four laws which introduced the secret ballot to all popular assemblies in the republic. They were all introduced by tribunes, and consisted of the lex Gabinia tabellaria (or lex Gabinia) of 139 BC, applying to the election of magistrates; the lex Cassia tabellaria of 137 BC, applying to juries except in cases of treason; the lex Papiria of 131 BC, applying to the passing of laws; and the lex Caelia of 107 BC, which expanded the lex Cassia to include matters of treason. Prior to the ballot laws, voters announced their votes orally to a teller, essentially making every vote public. The ballot laws curtailed the influence of the aristocratic class and expanded the freedom of choice for voters.Anonymous 2021 Ballot Laws of the Roman Republic
Lawyers, businessmen, teachers, doctors, all face difficult personal decisions involving their integrity – but few, if any, face them in the glare of the spotlight as do those in public office. Few, if any, face the same dread finality of decision that confronts a Senator facing an important call of the roll. He [Senator] may want more time for his decision – he may believe there is something to be said for both sides – he may feel that a slight amendment could remove all difficulties – but when that roll is called he cannot hide, he cannot equivocate, he cannot delay, like the Raven in Poe’s poem, is perched there on his Senate desk, croaking “Nevermore” as he casts the vote that stakes his political future. John F. Kennedy 1955 Profiles in Courage
To reduce the dominating and distracting effect that the press, home audiences, and third parties (lobbyists) may have, it is useful to establish private and confidential means of communicating with the other side. You can also improve communication by limiting the size of the group meeting. In the negotiations over the city of Trieste in 1954, for example, little progress was made in the talks among Yugoslavia, Britain, and the United States until the three principal negotiators abandoned their large delegations and started meeting alone and informally in a private house. A good case can be made for changing Woodrow Wilson’s appealing slogan “Open covenants openly arrived at” to “Open covenants privately arrived at.” No matter how many people are involved in a negotiation, important decisions are typically made when no more than two people are in the room. Roger Fisher & William Ury 1987 Getting to Yes
Note: Harvard negotiation experts Fisher and Ury mention Trieste, but other salient and important examples abound such as Kennedy’s private communications with Khrushchev which averted nuclear war and Mitchell’s closed door sessions which helped resolve the situation in Northern Ireland. In both cases it appears that secrecy was essential to the peaceful negotiation. These ideas are covered in an important paper by Finel titled ‘The Surprising Logic of Transparency.’
Open meeting laws for this reason are more problematic. In theory, the general public should gain by open government deliberations. In practice, observing can affect the behavior of the watched in undesirable ways. Moreover, it is not the general public but those with ample resources and concentrated interests who do most of the watching. Bruce Cain 2014 (Stanford) Democracy More or Less
ONegociations of this nature require a management and secrecy ill suited to the turbulence and party violence of a numerous House of Representatives.John Stevens Jr. 1788 Americanus
Negotiations are usually private affairs, held behind closed doors while the news media and interested observers wait outside for shards of information about prospects for a settlement. Consider how the news media cover labor talks during a strike, with cameras poised for sweaty negotiators to emerge from a hotel room after hours of give-and-take to issue some code words, which are then read like tea leaves. In contrast, much legislative negotiating is done in a bubble, with all the world able to watch. (Because few people do watch, the media stand guard and tell the public when something important happens.)
Beginning in the late 1960s, sunshine laws opened political deliberations to public view. Before 1970, most votes in Congress were not recorded, television and radio coverage of committee hearings was prohibited, and citizens were barred from learning how their representatives voted in committees. By the end of that decade, all committee hearings and votes – including conference committees between the House and Senate-were opened to the public (Rieselbach 1994).
Two arguments were used in support of opening political negotiations to public scrutiny. First, open negotiating was intended to educate citizens about the merits and demerits of public policies. Second, public negotiating was intended to ease the monitoring of legislators so that constituents would have a better sense of whether their representatives should be rewarded or punished at the next election (Bianco 1994).
Openness comes with costs, some trivial and others severe. For legislators, the trivial cost is having to endure the public grandstanding of one’s colleagues. The presence of C-SPAN cameras in a hearing or conference committee promotes puffery and posturing. This stretches out the proceedings and makes them somewhat more difficult to interpret. The more serious cost, however, may be in limiting the kinds of solutions that are possible. If politics is the art of crafting temporary coalitions of strange bedfellows, those awkward embraces may be more difficult when the public is watching. It is important to compromise, but it is also politically risky to be seen compromising.David King and Richard Zeckhauser 1998 Legislators as Negotiators
A growing number of theoretical studies suggest that secrecy in world politics provides more efficient mechanisms of political bargaining. An implication from these theoretical studies suggest that we should be observe many cases of secret diplomacy. Anecdotal evidence, highly suggestive of the utility of secrecy, is abundant and this seems to corroborate the existing theoretical propositions about secrecy. Yet, many scholars take it for granted that world politics consists of public events and that secrecy is of no important consequence or an anomaly. This is partly because none has yet successfully established systematic evidence that secrecy matters and that there exists a hidden class of phenomena in world politics. Testing a theory on secrecy diplomacy is challenging because, by definition, it is not systematically observable. The principal burden of proof for scholars of secrecy in world politics is to provide more systematic evidence—both quantitative and qualitative—that secrecy matters. Shuhei Kurizaki and Taehee Whang 2016 Inferring Secret Diplomacy
Contributions are offered and accepted, solicited and anted up, when legislation is being drafted, considered in committee, voted on on the floor, or considered for repeal.Amitai Etzioni 1998 Capital Corruption
Open voting allows legislators to give third parties credible commitments to vote in particular ways in return for bribes or in response to threats.Adrian Vermeule 2004 The Constitutional Law of Congressional Procedure
We may examine reasons that might give legislators good reason to fear the consequences of the transparency of legislative voting, and that might even cause their voter-principals to agree that public voting has important costs as well as benefits. From the legislators’ point of view, a major historical concern is that the executive branch will punish them for voting contrary to executive interests; the fear of monarchical influence animated Parliament’s elaborate attempts to maintain the secrecy of its proceedings during the seventeenth and eighteenth centuries. From the social standpoint, voter-principals might well approve of the legislature’s attempts to shield itself from executive-branch coercion. If the constitutional design seeks to minimize agency costs in part by creating institutional competition between branches, then executive aggrandizement and consequent domination of the legislature enabled by legislative transparency increases those costs.Adrian Vermeule 2004 The Constitutional Law of Congressional Procedure
With secret voting, legislators cannot strike credible vote-selling bargains with the executive or interest groups, so the value of legislators’ promised votes to those groups declines.Adrian Vermeule 2004 The Constitutional Law of Congressional Procedure
Polarization is a cost of many of these good government reforms. It is almost an intended cost if you think about it… Transparency, open meetings, bans on earmarks, and weaker party machines make compromise more difficult.Nathaniel Persily 2014 Would Stronger Parties Mean Less Polarization?
Surprisingly, we found transparency had no significant effect in almost any of our quantitative measurements, although our qualitative results suggested that when transparency interventions exposed corruption, some limited oversight could result. Our findings are particularly significant for developing democracies and show, at least in this context, that Justice Brandeis may have oversold the cleansing effects of transparency. A few rays of transparency shining light on government action do not disinfect the system and cure government corruption and mismanagement.Brigham Daniels, Mark Buntaine & Tanner Bangerter 2020 Testing Transparency (Climate)
During the early years of the Republic, despite an implicit commitment to open congressional debate, the Senate remained entirely closed to all but members and clerks until December 12, 1795. Even after that, as is well known, Senators sat in closed executive meetings during large portions of every session. From the beginning, the Founders intended this small body to be the nation’s legislative conclave. Nelson Dearmont 1975 Federalist Attitudes Toward Governmental Secrecy in the Age of Jefferson
Given the prevailing belief that effective foreign relations required secrecy, without recourse to secret sessions the members of the lower house would have received less information from the executive branch than they did…Their new conception tipped the balance of governmental privacy and publicity towards concealment and away from the position of candor marked off by their original principles. Nelson Dearmont 1975 Federalist Attitudes Toward Governmental Secrecy in the Age of Jefferson
[Before the passage of the 1970 Legislative Reorganization Act] If an amendment is defeated in the Committee of the Whole, it is virtually impossible to get a roll call vote on it later when the Committee rises and the House goes back into regular session, preparatory to taking final action on a bill. As a result, Representatives can vote for crippling amendments to bills which they then vote for on final passage – and their constituents are none the wiser. This secret voting has an ancient history. In Britain in the 17th century, the House of Commons evolved it as a device to shield individual members from intimidation by King James I and King Charles I. When a difficult decision had to be taken, the House simply became a committee, the Speaker was excluded as a probable royal spy, and a vote was taken with no record kept. When the House of Representatives was organized in 1789, it took over this practice.William Shannon 1970 The House Decides to Stop Being So Secretive (New York Times)
[Before the passage of the 1970 Legislative Reorganization Act] Only the House Education and Labor Committee does all its business in open session. By contrast, the Appropriations Committee, the most powerful committee, never meets except in secret. Ordinary members are in the dark as to what has been decided by one or another of the powerful Appropriations subcommittees until a money bill reaches the floor.William Shannon 1970 The House Decides to Stop Being So Secretive
Information is the currency of Capital Hill, not dollars and not friends.Schoonmaker (Lobbyist) 1993 It’s What Lobbyists Know
Government transparency is no cure-all and does not always have positive outcomes.Cucciniello, Grimmelikhuijsen, Porumbescu 2017 25 Years of Transparency Research
The historic debate on the advantages and disadvantages of electronic voting in many ways hinged on transparency. Throughout the early debate in the 1914 and 1916 Congresses, members were concerned about the transparency of their votes and the consequences of public and lobbyist access to voting information prior to publication in the Congressional Record. Members were also concerned about lobbying by other members during votes, whether votes could be changed once they were cast but before voting time expired, and if changes would be published in the record… (Now) party leadership (uses) voting as a tactic to require other members to state a position on the record.Jacob Straus 2012 The Rise of Roll Call Votes
Secrecy can also be useful to the proper working of checks and balances. Because of fear of reprisal, legislators might be willing to rein in the executive only in ac system in which voting was secret.Daniel Epps 2008 Mechanisms of Secrecy (Harvard Law Review)
Note: We found this quote in an excellent article by P. Sharp "Secret Diplomacy of Late Moderns" the following is from his piece "The classic texts are liberally sprinkled with expressions to the effect that secrecy is indispensable to the conduct of diplomatic relations. Callieres begins his discussion of communications between the ambassador and his sovereign with the following, ‘Secrecy, being the very life of negotiations’, or in some translations, ‘Secrecy is the very soul of diplomacy’ (Callieres 1983 [1715): 164; Freeman 1997: 264)."
Secrecy tends to induce bargaining and publicity to induce arguing, secrecy also improves the quality of whatever arguing that does take place behind closed doors.Jon Elster 2008 Optimal Design of Constituent Assemblies
If the debates are public, perhaps because the need for diversity requires a large assembly that will not be able to maintain secrecy, one might in fact impose secret voting both to eliminate interest-based logrolling and to make the delegates unafraid of voting the wrong way on popular proposals. -- To exclude audience pressure that might bring delegates under the sway of emotion (vanity or fear), the assembly should debate in secret or, alternatively, vote in secret.Jon Elster 2008 Optimal Design of Constituent Assemblies
Roll-call votes provide an obvious means by which party leaders can monitor compliance with their voting instructions… Legislative parties may use roll-call votes specifically to discipline their members. Roll-call votes allow legislative party leaders to monitor their members’ behavior, which is essential for accurately doling out reward or punishment.Carrubba, Gabel & Hug 2008 Legislative Voting Behavior
We investigate…anti-corruption strategies (transparency and leader investment in the public good) and cultural background…These results suggest that a more nuanced approach to corruption is needed and that proposed panaceas, such as transparency, may actually be harmful in some contexts. Muthukrishna & Francois 2017 – Nature Magazine How Anti-Corruption Strategies May Backfire
Some reforms of the post-Watergate age that were designed not to redistribute power but simply to bring into the open the processes of government have had unintended and unexpected effects in making it harder for followers to follow and leaders to lead. Recording of previously unrecorded teller voters in the House now makes it possible for everyone back home to find out how a member voted; to the new ideal of openness is sacrificed the honored tradition of logrolling, the secret pledging and delivery of votes that may not be in the interest of one’s constituency to serve the cause of party solidarity. Opening of committee meetings, including House-Senate conferences, to public view has had the same effect James Sundquist 1981 The Decline and Resurgence of Congress
Note: Earlier in the book Sundquist covers these reforms but then in a footnote makes the surprising claim that he doesn’t focus on these reforms because he doesn’t feel like they are important enough. His writing on this follows: "Still other reforms were aimed primarily at improving the reputation of the Congress, by opening up hitherto hidden processes to public scrutiny. Subcommittee and committee “mark-up” sessions—where compromises are struck and bills rewritten—were brought into the full view of lobbyists and journalists. So, even, were conference committee meetings. Previously un-recorded teller votes in the Houses were placed on record, as that body introduced electronic voting. The House even introduced televised recording of its proceedings. Both House and Senate introduced new, tight rules limiting what members could earn outside the Congress and requiring disclosure of income and investments... Reforms relating to openness of processes, ethical conduct, and introduction of technology are not discussed further, because while they affect the moral tone and public reputation of the Congress, they do not bear significantly on its capacity to do its work or on the balance of power between the branches."
It was… best for the convention for forming the Constitution to sit with closed doors, because opinions were so various and at first so crude that it was necessary they should be long debated before any uniform system of opinion could be formed. Meantime the minds of the members were changing, and much was to be gained by a yielding and accommodating spirit. Had the members committed themselves publicly at first, they would have afterwards supposed consistency required them to maintain their ground, whereas by secret discussion no man felt himself obliged to retain his opinions any longer than he was satisfied of their propriety and truth, and was open to the force of argument.James Madison 1830
Forcing the publication of votes in an institutional setting that relies on diplomatic practices can have deleterious effects on accountability: In some cases, the publication of votes might operate as a window-dressing device, prompting the public belief that ministers are accountable since they publish their votes, while real monitoring of the decision makers’ stances is not possible.Stephanie Novak 2015 Secrecy and Publicity
On any morning of any legislative day in the 1960's, as many as twenty House committees and subcommittees could be found hard at work conducting public hearings or secret sessions on as many varied subjects of contemporary life, from farm fertilizers and public housing to Army modernization and Latin American policy.Neil MacNeil 1963 Forge of Democracy
[With respect to the Senate and confirmation of judicial nominees Majority Leader remarked] We have a lot of votes to get through today. Most of these votes in old days would have just occurred by voice. But our colleagues on the other side of the aisle, just a handful [of the minority], are making us vote, even for D.C. judges, circuit judges. But we have to get through them. The D.C. Courts have come to a standstill. And many other votes. So we'll have a lot of votes to get through today.Chuck Schumer 2022 The length of votes in the Senate has gotten unwieldy by all accounts
How does a no-confidence vote work? Under Conservative Party rules MPs can write to Graham Brady, the chair of the 1922 Committee, requesting a confidence vote in the party leader. Only Brady knows for certain how many letters there are. The epistolary assassins are guaranteed anonymity – unless they choose to make their intentions public. Once a confidence vote is triggered, a secret ballot of all Conservative MPs is held, normally over a single day. If the party leader wins the vote (by securing more than 50 per cent) they remain in office and are rewarded with a year’s immunity. If they lose, they are forced to resign and are barred from standing in the leadership election that follows.George Eaton 2019 How Does a No-Confidence Vote Actually Work
The so-called “sunshine laws” passed during the 1970s and other efforts to “open up the process” also had the unintended effect of spurring growth in the lobbying world.Gary Andres & Paul Hernnson 2009 Lobbying Reconsidered
The most insidious part of open meetings is the behavior of lobbyists, and seeing them passing notes to members in conferences.Rep. Wayne Hays 1975 CQ Quarterly - Open Committees
In addition to the democratic goods of the right to know and accountability, transparency in process has recently been advanced as a means to shore up citizen trust in government. Yet transparency may not have this effect. Several studies find no effects of transparency on trust and procedure acceptance. In one recent study, transparency in process did not produce increments of legitimacy significantly greater than transparency in rationale. The authors conclude that “a relatively modest reform focusing on transparency in rationale – such as a reason-giving requirement – may contribute to similar degrees of added legitimacy as more far-reaching transparency in process measures. Decision makers may improve the legitimacy of the procedure by simply outlining carefully afterward the reasons for the decisions taken behind closed doors.”Mark Warren & Jane Mansbridge 2013 (citing De Fine Licht) Political Negotiation
Not all observers of legislative representation are sanguine about full transparency. Edmund Burke (1774) famously reproached the idea that his constituents’ interests, properly conceived, were best served by closely monitoring his behavior in parliament and demanding responsiveness. Schumpeter (1942) advanced a similar point of view nearly two centuries later. Some contemporary empirical accounts make the case that closed-door decision-making produces better policy by freeing legislators from pressures to pursue parochial interests (Birnbaum and Murray 1988). John M. Carey 2013 Transparency and Legislative Behavior
On those issues where the public’s beliefs are systematically biased, making the policy process more transparent has drawbacks, as those politicians who would chose the policy that maximizes the public’s welfare behind closed doors have electoral incentives to cater to the public’s mis-perceptions when policy is made in the open. Justin Fox 2006 Government Transparency and Policymaking
Note: This citation sums up the issues we have with criminal reform and the massive rise in incarceration since the sunshine reforms.
When Congress attempted to create a more open, decentralized, transparent, and accountable process, it had the unintended effect of stimulating the growth of lobbying.Gary Andres & Paul Hernnson 2009 Lobbying Reconsidered
Good government reformers have made a decades-long push to make the activities of members more transparent to the public so that members can be held accountable for their decisions. Some political scientists say these efforts have been too successful, and that the deal-making needed for orderly government is now too difficult because members are criticized the moment they stray from an established public position (Binder and Lee 2013). One option would be to return to an earlier system in which total vote tallies – rather than the votes of individual members – are reported for appropriations bills. Members might be more willing to cast tough votes, and there would be a reduced incentive for “gotcha” amendments aimed only at causing members political harm. The path of appropriations bills through the floor would likely be smoother.Peter C. Hanson 2015 Restoring regular order in congressional appropriations
Increased transparency may actually make people less trusting than under conditions of less or no transparency. Full public insight into the decision-making process involves potential efficiency costs such as decision makers becoming less willing to agree on compromises, and it increases the risk that people become disappointed regarding the conditions under which decision making takes place.Jenny de Fine Licht 2014 Magic Wand or Pandora’s Box? Transparency affects public perception
Congress should change its internal rules so that all votes on amendments and procedure are done by secret ballot, and all votes on passing laws are public and recorded. This would make our lawmakers less accountable to special interests, who would be unable to verify the effectiveness of their large campaign contributions. It would also make our lawmakers more accountable to us. Because anonymous voting on amendments would make political deal making more difficult, bills would have fewer unrelated amendments. This would allow us to see more clearly what our representatives actually support. It may seem counterintuitive that we can increase accountability by instituting a secret ballot, but it would be difficult to argue that the current system is giving us effective accountability. Only the special interests have the resources and focus to track the process of legislative drafting. What we, the citizens, really need to track are the results. We need to hold our politicians accountable for the laws that get enacted, not for the drafting process. Our democracy already gives individual voters the right to a secret ballot. We do this so that we are free to vote our convictions, protected from the fear of retribution and from the possibility of our votes being bought.Danny Hillis 2011 A Proposal for Meaningful Change in Washington
Third [organized interests, special interests and lobbyists] are better able to engage in surveillance of officeholders in order to encourage them to act in their favor. One of the most important things in democracy is information right. And one of the things you do when you organize is you can have people watching what officeholders are doing. Most people don’t have the time, they don’t have the resources to engage in surveillance so officeholders have a relatively free hand. But those who are organized are able to make sure that office holders know they’re watching, and therefore they’re much more likely to get their way.Steven Teles 2018 The Captured Economy
There’s a reason that judges deliberate privately; there's a reason that some meetings are in camera… It is an unusual methodology, but I don't feel like there's this cloak of mystery. By operating in secret, the supercommittee members don't have to constantly justify their positions to outside interests.Rep Trey Gowdy (R-SC) 2011 Silence Of Super(secret)committee May Be Progress
Too much transparency might produce gridlock instead of policy success.Walter Oleszek 2011 Lawmaking
The duty to deliberate well may often be inconsistent with attempts to conduct policy deliberations on the plane of public opinion.Joseph Bessette 1994 Mild Voice of Reason
The question arises (whether)… transparency is either conducive to more corruption or, at least, to corruption taking forms that are more detrimental to efficiency or equity.Albert Breton 2007 The Economics of Transparency in Politics
Could one argue in some settings, the requirement of more transparency would lead to greater efforts devoted to obfuscation, and eventually to the generation of more waste?Albert Breton 2007 The Economics of Transparency in Politics
Take for instance, the so-called “sunshine” laws which are being passed at every level of government, and against which no public figure seems bold enough to protest. They require that practically all meetings of all official bodies be open to public view. This sounds good, but in actuality it is utterly absurd. It’s no way to run anything, whether it be a school board, a university department, a trade union or a government agency. It penalizes candor and compromise and rewards aggressive “grandstanding.” Does anyone really believe that the Ford Motor Company and the United Automobile Worker could have reached an agreement if their negotiations were transmitted live on television? Or even if minutes of the meetings were kept? Similarly, the only reason Congress can function is because the committee system provides private (i.e., “secret”) occasions for negotiation that are distinct from the public forum where opinions are sharply expressed and debated.
It is easy to predict that these “sunshine” laws will be regularly evaded, even by the legislative bodies that enacted them. But they will be a perpetual nuisance, will provide opportunities for mischievous intervention by various publicity-hunting busybodies and, above all, will have exactly the opposite effect from that intended; instead of increasing public respect for the laws or the land, they will simply provide another instance of frequent nonobservance of these laws by public officials at all levels.Irving Kristol 1976 Post-Watergate Morality
After 1971 it became relatively easy to demand a recorded vote on amendments… Such rules changes have complicated the lives of members and reinforced some of the more troubling aspects of the permanent campaign… Opposition researchers pore over members’ voting records in an attempt to find a vote contrary to – or a vote that can be (mis)construed as contrary to – the preferences of their constituents. Every vote a member casts must be considered a potential campaign issue. Indeed, some bills and amendments are offered only as a vehicle for forcing a vote that will provide a campaign issue.Norman Ornstein & Thomas Mann 2000 Permanent Campaign
If tax information was controlled within Congress, it was substantially lacking outside. Because Ways and Means and Finance marked up tax legislation in executive session (secret sessions), only interests with access to the right congressmen were in a position to influence the process. Often, the legislative aides of committee members were not permitted in the meeting room, though Treasury officials sat at the staff table alongside the specialists from the joint committee and participated in the markup. Outsiders did not have timely reports of committee deliberations, nor could they rely on tax groups (comparable to the numerous associations active on the state and local levels) to represent their interests. Of course, many interest groups monitored congressional tax activity and lobbied in behalf of legislation favorable to their constituents, but virtually all confined their interests to the particular matters in which they specialized – agriculture, business, labor, and so on, across the whole spectrum of American politics. By selectively responding to these special interests, Congress could deflate pressure for a comprehensive review of the tax laws. Allen Schick 1981 (edited Norm Ornstein & Thomas Mann) The New Congress
It would be too difficult to put together a fiscally responsible bill if special interests could record how every member voted on every amendment. The temptation to vote yes on everything would be too great.Rep. Hatcher 1991 CQ Quarterly - Behind Closed Doors
You said that what people want is to be included… And I’m fascinated by the drop in confidence across institutions. And one thing I see when I look at that polling is that the more open the institution has become, the more people actually are included in the institutions workings – things like Congress, the Presidency, increasingly all facets of American life have become more transparent – the more [the public’s confidence has] dropped. And then the more cloistered [the institution] is – the Supreme Court, the Army – the more it sort of works on the side, on its own, the more it has sustained trust. There seems to me to be a tension in American life right now, where we often want the institutions that govern us, that help shape the world we’re a part of, to be more open to us. But when we get more into them, we don’t like it as much.Ezra Klein 1997 Is Mitch Landrieu the “White, Southern Anti-Trump”?
Suffice it to say that there appears to be a fairly widespread consensus that the Sunshine Act is not achieving its principal – and obviously salutary – goal of enhancing public knowledge and understanding of agency decision-making. Instead, there is a considerable body of evidence in the academic literature, confirmed by the testimony of several agency officials, that the Act’s “open meeting” requirement curtails meaningful collective deliberation and substantive exchange of ideas among agency members. Rather than actual collective deliberation in public, agency members often use the open meeting merely to announce and explain their positions.Randolph May 1997 Reforming the Sunshine Act
Our results demonstrate that transparency interventions in nondemocratic systems can have adverse consequences for how delegates represent their constituencies.Edmund Malesky, Paul Schuler and Anh Tran 2012 The Adverse Effects of Sunshine: A Field Experiment
This adverse consequences hypothesis, developed by Prat (2005), delineates the conditions under which transparency may lead less legislative responsiveness and worse policy outcomes for voters. Edmund Malesky, Paul Schuler and Anh Tran 2012 The Adverse Effects of Sunshine: A Field Experiment
Americans can make little progress in resolving such debates until they can get beyond the cynical, partisan use of slogans like “the public’s right to know” and “full transparency” by President Trump’s loyalists. Now more than ever, Americans must understand how and when transparency contributes to the strength and vitality of our democratic institutions and how and when the invocation of the public’s right to know is being used to erode them.Austin Sarat 2018 Is full transparency good for democracy?
In response to challenges to FOIA’s exceptions, courts have found that there is no constitutional or common law basis for a general public right to know.Austin Sarat 2018 Is full transparency good for democracy?
Bentham did not think the public had an unqualified “right to know.” As he put it, “It is not proper to make the law of publicity absolute.” Bentham acknowledged that publicity “ought to be suspended” when informing the public would “favor the projects of an enemy.”Austin Sarat 2018 Is full transparency good for democracy?
Nelson and Silberberg find a deference to special interests in open voting on defense bills, in which congressional voting patterns vary with the degree of anticipated scrutiny. They find evidence consistent with legislators being more likely to vote their personal ideologies on general defense bills than on narrowly focused bills dealing with particular weapons because in the latter case, there are identifiable beneficiaries who will monitor a Senator’s votes.Douglas Nelson & Eugene Silberberg 1987 Ideology and Legislator Shirking
New empirical political science research on deliberation suggests that, under certain circumstances, “it is better for public deliberation to go behind closed doors and so insulate deliberators from the harmful effects of the glare of publicity” (Simone Chambers, 2005: 255)Ethan S. Bernstein 2017 Making Transparency Transparent
A secret, nonbinding, straw poll can rescue our hyperpolarized politics.Sanho Tree 2015 Institute for Policy Studies
Although practical, the problem with measuring organizational transparency by practices is that those practices are not always correlated with actual transparency. Why aren’t they working? Rousseau ([1762] 1993: 154) knew the answer 250 years ago: transparency practices may, “instead of exposing frauds, only conceal them; for prudence is never so ready to conceive new precautions as knavery is to elude them.” To this day, the ingenuity of observers in designing new systems for transparency is still no match for the ingenuity of the observed to hide (Levy, 2016). With increases in measured transparency, scholars have found increases in impression management (Giacalone & Rosenfeld, 2013; Rosenfeld, Giacalone, & Riordan, 1995), window-dressing (Prat, 2006: 93), posturing (Walton & McKersie, 1965), pandering (Stasavage, 2006: 169), political correctness (Morris, 2001), and a “chilling effect” on open dialogue (Solove, 2006: 488, quoting Laird v. Tatum, 408 U.S. 1,1,13 (1972)). Indeed, one study found a “reverse Hawthorne effect” from transparency: because transparency enables those who are being observed to better see their observers, it makes it easier for them to hide anything they want to hide (Bernstein, 2012).Ethan S. Bernstein 2017 Making Transparency Transparent
The more Congress conducts business in public, the more members hog the spotlight for their own grandstanding and obstructionism to get on TV.Damon Linkler (U. Penn) 2024 Secret Congress
In Goffmanesque vocabulary, these deliberative democracy scholars find that “when playing for an audience of citizens, legislators in a competitive system know that there is much to gain by discrediting one’s opponents and little to gain from praising them” (Steiner, Bächtiger, Spӧrndli, & Steenbergen, 2005: 130). In the glare of transparency, arguments may “become shallow, poorly reasoned, pandering, or appeal to the worst that we have in common. Indeed, some have traced the deterioration in the quality of dialogue, and increase in gridlock, in the United States Congress to the introduction of always-on C-SPAN2 cameras” (Weisman, 2012). The question now is: “when does the desire to please an audience lead to ‘well-crafted’ arguments and when does it lead to ‘rhetoric, demagoguery, and overbidding’” (Chambers, 2005: 260)?Ethan S. Bernstein 2017 Making Transparency Transparent
PBS Frontline: Taxes Behind Closed Doors (1986)
Note: 1986 Reform is considered by outsiders on both the right and the left as our most successful tax reform in 50 years. It was also conducted behind closed doors (not the closed caucus sessions of the 2017/2019 reforms).
In environmental legislation, the final impact of a bill often depends on issues resolved through technical amendments. Downs’s theory (1957) of rational ignorance holds that citizens do not seek out detailed information on public policy because their votes individually have such a small probability of affecting political outcomes. Arnold (1990) notes the additional complication that constituents often face difficulties in linking up congressional actions with real-world outcomes. Both theories predict that Congress members may be less constrained by general constituent interests on amendment votes because these votes are less likely than final legislative votes to be covered in the media. … In the case of technical amendments, affected parties may be more influential than on highly visible votes because the lack of media coverage translates into a lower probability that the vote will become a major campaign issue in future elections. This implies that voting to control pollution will be driven in part by the specific district-level costs and benefits of these measures, whereas voting on the final passage of a bill will be more driven by general constituent interests.James T. Hamilton 2005 Regulation Through Revelation
Analysis of the votes on these amendments and final authorization also reveals a set of legislators who voted against the environmental position on all amendments and yet voted for the final bill. Because the amendment to provide toxic release information was voted on twice, the data also provide information on legislators who change positions after more attention is focused on a particular issue. These votes thus allow one to explore how legislator positions vary with the degree of scrutiny anticipated for a vote. The results indicate that legislator votes on policy instruments to control pollution are affected by the district-level incidence of the costs and benefits of these particular measures. These factors are less important in passage of the final bill, a symbolic vote influenced more strongly by the broader electoral constituency of a representative. In making contributions to Congress members, the PACs representing the affected chemical and petroleum industries appear to contribute more on the basis of a legislator’s stand on contested technical amendments than on a representative’s general environmental position or vote on the final passage of the bill. This provides further evidence of the role that business interests may play in the selection of instruments to control pollution.James T. Hamilton 2005 Regulation Through Revelation
Our culture seems to reel from one democratic dysfunction, to which the solution is more citizen empowerment, to another, in which we must face up to the perverse consequences of this prior solution, only to try yet another way to ensure more transparency and citizen control.Richard H. Pildes 2013 Romantacizing Democracy
The last three presidents of the United States all served in this body - Mr. Nixon, Mr. Johnson and Mr. Kennedy. And if someone were writing the memoirs of any one of them on the important issues of the time in which they served… one would have to surmise or guess how they stood on the vital questions of the day, because there would be no record.Tip O’Neill 1970 Tip O’Neill and the Democratic Century: A Biography by John Farrell
Concern that providing initial deliberative views publicly, without sufficient thought and information, may harm the public interest by irresponsibly introducing uncertainty or confusion to industry or the general public; a desire on the part of members to speak with a uniform voice on matters of particular importance or to develop negotiating strategies which might be thwarted if debated publicly; reluctance of an agency member to embarrass another agency member, or to embarrass himself, through inadvertent, argumentative, or exaggerated statements; concern that an agency member’s statements may be used against the agency in subsequent litigation, or misinterpreted or misunderstood by the public or the press, as for example, when the agency member is testing a position by "playing devil’s advocate" or merely "thinking out loud"; and concerns that a member’s statements may affect financial markets.Special Committee Report 1997 Reforming the Sunshine Act
As recently as the early 1970s, congressional committees could easily retreat behind closed doors and members could vote on many bills anonymously, with only the final tallies reported. Federal advisory committees, too, could meet off the record. But… smoke-filled rooms, whatever their disadvantages, were good for brokering complex compromises in which nothing was settled until everything was settled; once gone, they turned out to be difficult to replace. In public, interest groups and grandstanding politicians can tear apart a compromise before it is halfway settled.Jonathan Rauch 2016 How Politics Went Insane
Despite promising to televise negotiations over health-care reform, President Obama went behind closed doors with interest groups to put the package together; no sane person would have negotiated in full public view.Jonathan Rauch 2016 How Politics Went Insane [Executive Branch]
Sam Gibbons laughs when people ask him if it is true he once picked up a heavy water pitcher and had to be restrained from heaving it at a colleague during a heated, closed-door session to draft a poverty bill. The congressman from Florida says the story has gained something in the re-telling. He says if reporters had been present at that closed meeting in the late 1960s, they would have seen it was all in fun and not nearly as ominous as legend would have it. A decade later reporters are present at such congressional committee bill-drafting sessions, and very few water pitchers are hurled. The audience also might include lobbyists and tourists who just happen by, all of them the beneficiaries of “sunshine” rules adopted by the House in 1973 and the Senate in 1975.Gene Berhardt 1977 Open Doors in Congress Work Well
Public sessions keep a man from thinking out loud. It also inhibits the use of four-letter words. Some members need to use that language to adequately express themselves. The result is they just don’t say anything in open session. Then, too, some members are concerned their questions might sound ignorant, something they wouldn’t be afraid of in a closed session.Rep. Richard Ichord 1977 Tampa Bay Times
There isn’t much hard evidence that transparency reliably improves real-world decision-making or makes the public happier, and some evidence points to ill effects. One recent study finds that, in developing countries, transparency makes the public more fatalistic about corruption rather than stimulating outrage and action; the same dynamic of cynicism and numbness may apply in the United States, especially when transparency is coupled with paralysis. The public sees more of the sausage-making while getting less sausage. Ray La Raja finds that disclosure rules seem to induce small political donors to halve their giving. The point is not that sunshine rules and disclosure laws are always bad or even to deny that up to a point they are a public good in and of themselves; it is only that they can be counterproductive and that reformers’ dogmatic and often moralistic commitment to them needs a reality check.Jonathan Rauch 2016 How Back Room Deals Can Strengthen Democracy
Many new members of Congress, as well as more experienced members, expressed reservations about the proposed rule change. Alan Cranston, new Democratic Senator from California, supported the rule change, but noted: “Conceivably, some reason other than ‘national security’ might justify an executive (secret) session…’ Henry Bellmon, new Republican Senator from Oklahoma, stated: ‘I strongly favor freedom of information, but I also favor free discussion and exchange of ideas...” Many respondents indicated areas other than national security where executive sessions might be needed. Senator Carl Curtis (R-Nebr.) indicated that hearings should be open and that votes made in executive session should be publicized, but said, “Committee members should be permitted to meet in executive session for discussion free from the pressure of the executive lobby or active proponents or opponents of legislation.” Representative William Natcher (D-Ky.) was reported in the Louisville Courier-journal (5-15-66) as believing that the practice of holding secret hearings is sound public policy in its own right, especially in reference to the House Appropriations Committee. If hearings were open, committee members would be under pressure “of kinds not in the best interests of the country.” “Facilitating the work of Congress” was frequently cited as a valid reason for executive sessions. Mark-up sessions, were committee and subcommittee members edit a bill for final submission to Congress as a whole, are the predominant area under this category. Although Representative Ed Edmondson (D-Okla.) favors public disclosure of all roll calls, he comments: ‘Mark-up of many bills, once hearings have been concluded, is made possible by executive sessions in which members can frankly discuss pros and cons of amendments without publicity.” Representative William Ford (D-Mich.) said: “Our experience in using this procedure (open meetings) to force Republican members to attend committee meetings on poverty, etc. produced more political speeches than solid results.” Representative Patsy Mink (D-Hawaii) commented on the time necessary for open mark-up sessions “…it would prolong the deliberations; with several hundred amendments being discussed, press coverage would require each member to seek for five minutes on each!”Freedom of Information Center 1969 FOI Attitudes of the 91st Congress (Gridlock, FOIA)
The sixth question: “Do you favor a requirement that members accredited to the Press Photographers’ Gallery and the Radio and Television Correspondents’ Galleries be permitted to take photographs during Senate and House committee and subcommittee meetings unless the committee or subcommittee determines, by majority vote at each meeting, that photography will not be permitted?” This question received the greatest number of negative responses, many of which were not qualified or explained in any manner. Of those explanations given for negative responses, fear of disrupting and impeding legislative work was most common. According to Representative William Mailliard (R. Calif.), extensive photographic coverage would be too distracting and should delay the proceedings. Representative John Sloss (D-Calif.), a leading advocate of freedom of information legislation, agrees to the requirement, “only if it does not disturb or intrude on the orderly progress of work.” Many candidates expressed fear that there would be excessive theatrics in Congress if photographers covered all meetings. Representative Mark Andrews (R-N.D.) supported the requirement, but foresaw a problem, “one of turning a hearing into a three-ring circus.. and the members spending more of their time and efforts posing for the press than conducting the hearings,” Representative Richard Hanna (D-Calif.) put it very simply: “too many hams.” Representative Louis Wyman (R-N !i.) commented: “It would emphasize form at the expense of substance in the legislative process” Freedom of Information Center 1969 FOI Attitudes of the 91st Congress (FOIA)
If deliberations are disclosed while they are in progress, organized groups with intense preferences may attempt to influence the outcome. Interest-group pressures could transform a deliberative process into an effort to trade off the interests of powerful, well-organized groups.Cass Sunstein 1986 Government Control of Information
If anti-coordination rules are an example of a bad idea which can’t work, transparency requirements are an example of a good idea which can work but which entails trade-offs whose existence advocates are reluctant to acknowledge. If there is one thing that progressives, populists, and libertarians all agree on, it is that sunlight is the best disinfectant. Lying, cheating, and stealing are certainly more difficult when the world is watching. But so are dickering, floating trial balloons, being candid, and working out complex deals. Public attention, note Sarah Binder and Frances Lee, induces politicians to posture and adhere to partisan talking points; closed-door negotiations, by contrast, give them more freedom to explore policy options and multidimensional, integrative solutions. Above all, privacy lets negotiators work out complex packages in toto before individual pieces are shot down. No wonder that “candidate Obama vowed to televise negotiations over health reform,” said The Economist, but “President Obama did no such thing”; instead, he went behind closed doors with congressional leaders and industry groups to hammer out secret agreements. In 2013, budget negotiations between the House and Senate budget committee chairs succeeded partly because, as a Democratic aide told Jill Lawrence, “their leaders empowered them to figure it out themselves, very, very privately.”Jonathan Rauch 2016 Political Realism: How Hacks, Machines, Big Money, and Back-Room Deals Can Strengthen American Democracy
Transparency often exacerbates crises. Specifically, it seems to have the following effects: First, the media – a major factor in transmitting information made available by transparency – may have an incentive to pay more attention to belligerent statements than more subtle, conciliatory signals [and]… transparency may actually undermine behind-the-scenes efforts at negotiated settlements. [And]… a lack of transparency may actually help states avoid conflict.Bernard Finel & Kristin Lord 1999 The Surprising Logic of Transparency
Consider the record of open diplomacy. It presents one salient lesson – especially since the close of World War II: it doesn’t work. Under the conditions of open diplomacy in the various conferences that have been held between the representatives of East and West, the Russians could not be anything but intransigent.Drew Middleton 1955 Open Covenants Unopenly Arrived At
Behind closed doors nobody can talk to the galleries or the newspaper reporters. Buncombe is not worthwhile. Only sincerity counts. Men drop their masks. They argue to, not through, each other. That is one reason why it would be a calamity if the demand for pitiless publicity of committee deliberations should ever prevail… Publicity would lessen the chance for concessions, the compromises, without which wise legislation cannot in practice be secured. Men are averse to changing their positions or yielding anything when many eyes are watching. It is in the conference room that agreements are reached, results accomplished.Robert Luce 1926 Congress: An Explanation
It is essential to efficient and effective administration that employees of the executive branch be in a position to be completely candid in advising with each other on official matters… It is not in the public interest that any of their conversations or communications, or any documents or reproductions, concerning such advice be disclosed.President Dwight Eisenhower 1954 Executive Privilege, Secrecy in Government
The “C-SPAN Effect” can encourage political posturing over genuine debate and a search for solutions. Using the C-SPAN model, more and more state and local governments are making more and more public hearings and meetings available over the public airwaves or over the Internet. Inviting this kind of public scrutiny would certainly seem to promote accountability. But it also can promote demagoguery over problem-solving, and it increases the chance that hearings or legislative sessions will devolve into partisan speechmaking. I can testify (anecdotally, to be sure) from my five years as a congressional staffer that there is a marked difference between the behavior of members of Congress in hearings depending on whether the cameras are on or not.Philip Joyce 2015 The Dark Side of Government in the Sunshine
Transparency is seen as exacerbating crises by overwhelming diplomatic signals with the “noise” of domestic politics and confusing opponents about which domestic voices are authoritative expressions of state policy. The authors conclude that, surprisingly, transparency makes conflicts worse more often than not – a conclusion that casts doubt on one possible explanation of the democratic peace.ernard Finel & Kristin Lord 1999 The Surprising Logic of Transparency
Subcommittee deliberations [on the 1970 Clean Air Act] took place in the ironically smoke-saturated, mid-sized Public Works Committee conference room, number 4200, in the New Senate Office building, also known as the Dirksen. These meetings were out of the public eye and off record, though stenographic notes were taken—a number of which, but not all, still survive... It was an era in which ten or eleven men... sat around in a closed room and talk about what public policy ought to be, without the influence of lobbyists and damn little influence of staff... Somehow, surrounded by the haze of their own smoke and tucked away from a progressive youth movement, this demonstrably homogenous and institutionalist collection of legislators, embodying uncontested privilege in America, worked out the fundamental piece of U.S. Code which would make significant progress in cleaning the air and protecting millions of Americans’ health and well-being.Brigham Daniels, Andrew P. Follett & Joshua Davis 2020 The Making of the Clean Air Act (Climate)
Is American government too open? The short answer is yes in many instances. Determining the right amount of democratic transparency is surprisingly complicated, because public officials must govern effectively, not simply in the most democratically pure way. When we make naïve assumptions about citizen capacity, democratic opportunities to observe and participate can be captured by highly motivated and well-resourced interest groups and individuals.Bruce Cain (Stanford) 2016 Is our Government too Open?
Because of the adoption of rules changes governing voting on the floor, the number of recorded roll call votes each year roughly quadrupled. Members felt more and more harassed by various pressures of office, including less discretionary time, more pressure from single issue interest groups, more clamor for constituency service, more need to raise campaign money, and more subcommittee assignments that demanded their attention.John W. Kingdon 1989 Congressmen’s Voting Decisions
The impetus toward opening up the legislative process by such measures as recorded teller voting, open committee markup sessions, and less frequent closed rules may have increased the degree to which congressmen take constituents into account. But following from our earlier discussion of constituency elites, because the constituents who are paying attention are often the organized interests, these procedural changes may also have resulted in more attention to narrow interests, more parochial voting, and less ability or willingness to structure the legislative situation to look after collective interests. Stripping legislators of the ability to conceal votes may have increased their responsiveness to constituents at the same time that it has decreased their ability to rise above narrow or parochial constituency interests.John W. Kingdon 1989 Congressmen’s Voting Decisions
The infrequency of votes on which congressmen are recorded aye or nay was another feature of the parliamentary situation used to get off the hook, at least in the late 1960s. If the vote is not recorded, then the congressman is able to miss the vote or even to vote contrary to the way he votes on the record. One metropolitan congressman told me of his actions on the Whitten amendment to restrict HEW desegregation guidelines:
“The bussing thing was hard. Bussing has created a lot of trouble in my city. People are mad about It. Damn good thing it wasn’t a roll call vote. I just didn’t vote on the Whitten amendment, I sat it out. (Question: What if it had been on the record?) That would have been a very tough decision. I don’t know what I would have done. But a nonrecord vote made it easy for me.”John Kingdon 1989 Congressmen’s Voting Decisions
On the subject of the history of the American Revolution, you ask who shall write it? Who can write it? And who will ever be able to write it? Nobody; except merely its external facts; all its councils, designs and discussions having been conducted by Congress with closed doors, and no members, as far as I know, having even made notes of them. These, which are the life and soul of history, must forever be unknown.Thomas Jefferson 1815 Letter to John Adams
Though many assume there is a constitutional “right” to attend meetings of the govemment, this assumption is incorrect; there is, in fact, no generally recognized common law or constitutional right for the public to attend govemmental meetings. Open meeting laws did not begin to crop up in a significant fashion until the middle of the Twentieth Century. Alabama is thought to have enacted the first “open meeting” law in 1915. And, as late as 1950, it remained the lone state with a “comprehensive” open meetings statute. In the years immediately following Watergate, however, the states with open meeting laws rushed to expand them and those without hastily enacted their own.Christopher J. Diehl 2010 Open meetings and closed mouths: elected officials’ free speech rights after Garcetti v. Ceballos
The inhibitions commonly associated with open meetings appear to have several effects. Among the more important of them reported by participants are to “take the sting out of debate,” as one member put it; to contribute to divisiveness among the membership by making the attainment of a consensus more difficult; and to limit the exchange of views, the flow of relevant information, the depth of critical collective scrutiny given to matters before the agency, and strategic speculation and planning.David M. Welborn, William Lyons & Larry Thomas 1984 Effects of the Federal Government in the Sunshine Act
Discussion or debate of the issues is likely to be more thorough and substantive when the public is not present.David M. Welborn, William Lyons & Larry Thomas 1984 Effects of the Federal Government in the Sunshine Act
Inhibited behavior is probably a more significant substantive consequence [of open meetings] than posturing and the influence of an audience on views. One form of inhibition is stylistic in nature. Open meetings were often described by respondents in terms suggesting the absence of meaningful exchanges, such as “stiff”, “formal,” “set pieces,” and “staged presentations.” Also dimished is the “kidding around,” one general counsel noted, that can contribute to a productive work climate. There also may be restraint in the content of what members say, according to interviews. Some of the reasons are substantive uncertainty and a desire not to appear uninformed, apprehension or uncertainty about market and political repercussions, a reluctance to embarrass staff, and fear of tipping the agency’s hand or revealing weak points in a proposed action. Staff members, interviews indicated, at times are inhibited in their contributions in much the same way and for the same reasons. Another form of inhibition concerns the adjustment of positions or a change in views in the process of deliberation. In some agencies it is reported that members can and do alter positions in open meetings as a result of what is said there and may adjust stances to facilitate accommodation of contrasting views. But there are counter pressures in support of the maintenance of a position after it is announced, even if there is an inclination to alter it. They include an unwillingness to appear weak, indecisive, or unprincipled.David M. Welborn, William Lyons & Larry Thomas 1984 Implementation and Effects of the Federal Government in the Sunshine Act
Academic Douglas Harris 1999 on Problems with Transparency
Because the members of the United States House of Representatives vote without a secret ballot, it does not come as a surprise that those seeking political support, both from within the House and elsewhere, make direct contact with members of congress, who hold the power to cast votes on pressing political issues… The concept of “buying a vote” is an extremely arbitrary idea, and thus, there is really no way to deter people entirely from becoming involved in these actions, which are often viewed with contempt. “Buying a vote” in congress does not necessarily mean that money is being directly exchanged between the hands of lobbyists and congressmen, but can really take on many different forms. Although members of congress would not voluntarily admit to the fact that their votes may be influenced by factors other than the opinions of their constituents, when provided with opportunities by influential lobbyists, who can ultimately see which congressmen voted “Yea” or “Nay,” they may find themselves struggling to ignore such appealing bribes.Hilary Greenberg 2013 Caught up in Corruption
Perhaps most jarring to modern minds was the rule providing “That no thing spoken in the House be printed, or otherwise published, or communicated without leave.” Like the intent of the resolutions rejecting individual roll call votes and permitting revotes, the secrecy rule was designed both to allow members to speak freely without fear of outside recrimination and to allay fears that might be spread should rumors be circulated on the basis of partial information. John R. Vile 2005 The Constitutional Convention
Concerned about how key negotiations are being pushed into the shadows, transparency campaigners and corporate lobbyists have formed an unlikely coalition in response.Harry Cooper 2016 Politico
The US has been the dominant country in the international system for some time. It has pursued a strategy of primacy in world politics since the 1940s, and its transparency policy is part of its long-term objective to forge and maintain a favorable international order. In effect, the aspiration behind America’s support for greater transparency abroad is about maintaining an imbalance of power among the countries of the world, with America on top.James Marquardt 2011 Transparency and American Primacy in World Politics
The ‘deal’ on climate policy between the Liberals and Nationals, between Scott Morrison and Barnaby Joyce, will see Australia formally commit to a target of reaching net zero emissions by 2050…Barnaby Joyce and the Nationals did not want to sign onto a net zero deal without significant concessions for the regions…It appears Scott Morrison has given away little to the Nationals to secure their support for the net-zero-emissions-by-2050 target. Of course, it is not entirely clear, given negotiations were conducted behind closed doors.Melissa Clarke 2021 Scott Morrison yields little but wins little in net zero support
Many members of Congress are afraid to vote against any of the crime bills, because “if you vote against any of these measures, you'll be perceived as soft on crime or pro-crime,” said Senator Mitchell. Political groups can spotlight a single vote in a TV advertisement, he said. “There is widespread concern that a vote might be distorted.”Julia Malone 1984 Senate quietly upends US justice system (incarceration)
Stone (2001) argues that ‘facts’ in decision-making are not objective as they are strategic representations of the interests of stakeholders in the public decision-making process. In addition, public decision-making is irrational and incremental, but is presented to the public as if it is rational and the model of rational choice is being obtained. The latter could have profound consequences on how the public perceives local government, if they take a look ‘behind the scenes’. The image of the local council as a rational decision-making organization may be violated and this might negatively influence perceived trustworthiness. Stephan Grimmelikhuijsen 2009 Transparency of local public decision-making
[Patrick Henry] has acrimoniously inveighed against the government, because such transactions as congress think require secrecy, may be concealed—and particularly those which relate to treaties. He admits that when a treaty is forming, secrecy is proper; but urges that when actually made, the public ought to be made acquainted with every circumstance relative to it. The policy of not divulging the most important transactions, and negociations of nations, such as those which relate to warlike arrangements and treaties, is universally admitted. The congressional proceedings are to be occasionally published, including all receipts and expenditures of public money, of which no part can be used, but in consequence of appropriations made by law. This is a security which we do not enjoy under the existing system. That part which authorises the government to withhold from the public knowledge what in their judgment may require secrecy, is imitated from the confederation—that very system which the gentleman advocates.James Madison 1788 - response to Patrick Henry General Defense of the Constitution
NOTE: Henry attacked the provisions in Article I allowing for congress’ unconditional secrecy. Henry wrote: The important right of making treaties is upon the most dangerous foundation. The President, and a few senators, possess it in the most unlimited manner, without any real responsibility, if, from sinister views, they should think proper to abuse it; for they may keep all their measures in the most profound secrecy, as long as they please. Were we not told that war was the case wherein secrecy was the most necessary? But, by the paper on your table, their secrecy is not limited to this case only. It is as unlimited and unbounded as their powers. Under the abominable veil of political secrecy and contrivance, your most valuable rights may be sacrificed by a most corrupt faction, without having the satisfaction of knowing who injured you. They are bound by honor and conscience to act with integrity, but they are under no constitutional restraint. The navigation of the Mississippi, which is of so much importance to the happiness of the people of this country, may be lost by the operation of that paper. There are seven states now decidedly opposed to this navigation. If it be of the highest consequence to know who they are who shall have voted its relinquishment, the federal veil of secrecy will prevent that discovery.
The consensus view of transparency is incomplete and, therefore, faulty because it represents transparency as a mechanism to transcend - and perhaps, once and for all, vanquish - power politics. Yet transparency can also be represented as part and parcel of power politics such that what it means, how it works, and the outcomes associated with it, for instance, are very much a function of the power dynamics that characterize world politics. That transparency is very much wrapped up with and therefore inseparable from power politics escapes serious attention.James Marquardt 2011 Transparency and American Primacy in World Politics
America’s transparency initiatives and the resistance of others to them have exacerbated tensions and exaggerated each side’s security dilemma, thereby feeding into a spiral of hostility from which there is no easy exit.James Marquardt 2011 Transparency and American Primacy in World Politics
The purpose of this book is to make the case for the inseparability of transparency and power… Transparency in international politics and American foreign policy is first and foremost a formation of power, which is most acutely evident in transparency’s surveillance function. Although it is represented by American policy elites as a liberal value, America’s efforts to institutionalize transparency function principally as a mechanism to keep a close eye on and discipline rivals.James Marquardt 2011 Transparency and American Primacy in World Politics
Public officials routinely affirm their commitment to greater transparency in government and lament how the lack of it inhibits cooperation and generates fear and suspicion. Yet the reality is that their calls for greater transparency are politically motivated.James Marquardt 2011 Transparency and American Primacy in World Politics
In writing a book skeptical of America’s pursuit of increased transparency in world politics, Marquardt injects needed arguments into debates and policies where far too many assume that transparency is an unalloyed good. This book shows how the United States has used transparency for strategic purposes, and not just for mutually beneficial agreements between states. Thus, the United States often encounters resistance to its almost uniformly pro-transparency policies.Dan Lindley (Notre Dame) 2011 University of Notre Dame
In 1783, Alexander Hamilton of New York and James Wilson of Pennsylvania spearheaded an effort to open the doors of Congress to a public audience for a debate on the national debt. The effort, branded by southerners as a move to subject Congress to the local merchants’ influence, was rebuffed.Daniel N. Hoffman 1981 Government Secrecy and the Founding Fathers
Tip O’Neill launched internal live television of the House floor using House camera crews in March, 1977, and two years later gave the public access through C-SPAN. The Senate followed in 1986 using its own camera crews… We staff got used to having the backs of our heads on TV, and we cracked jokes about those staff who seemed to cross behind the chair too many times just to be seen from the front. I also started attending more meetings behind closed doors to reach agreements that would be reenacted before the cameras the next day. It’s a lot more work to do everything twice, and sometimes the reenactment on camera didn’t go according to the script, so the chair would hastily recess to repair the damage… I object to televising every utterance every minute of every closed door meeting because the meeting will be impaired… It may be a futile plea, but… human beings need interaction to try out ideas and to gage support without being crucified for trying something that wasn’t adopted anyway. The more scrutiny beyond a reasonable amount, the less useful business gets done.House Staff Pete Davis 2010 Cameras and Congress (Ezra Klein)
Rep. Suzanne Schmidt, R-Spokane Valley, claimed the privilege is not an exemption from public disclosure laws but instead it is “a tool to ‘provide legislators a fundamental constitutional protection that allows them to work independently and unimpeded by threats of judicial or executive intervention.’”Shauna Sowersby 2024 Only some WA state lawmakers say they will commit to transparency. Is your lawmaker one of them?
In reference to lobbyists, D’Angelo explained that they are the only group that needs transparency to survive. “They need transparency like we need oxygen,” he quipped, because without it, they would have no way of guaranteeing whether or not lobbying was a good investment.Bruce Skarin 2015 Why Transparency in Congress is Giving Power to the Wrong People
State open meetings laws are preventing local officials from engaging citizens online for fear of inadvertently having what would be legally considered a meeting that would not meet other requirements such as public notice and public access. At the federal level, the 1972 Federal Advisory Committee Act is preventing the exchange of knowledge between the government and private sector. The purpose of the law was to prevent federal agencies from having back-room consultations with corporate executives and other entrenched sources, but the requirements for obtaining public input have grown so complex under the act that today the law is probably preventing federal agencies from getting the best knowledge.Josh Tauberer 2014 Unintended Consequences of Transparency
Indeed, the Congress today is remarkably open, permeable to outside interests and opinion, and relatively unconstrained by autocratic committee and party leaders. Members if anything are hypersensitive to public opinion and unduly solicitous of intense opinions in the electorate, however ephemeral they may be. And committee and party leaders are responsive to majority sentiment among rank-and-file members. The Congress and its leaders are less equipped institutionally to cool the temporary passions of the public than ever before. The Framers of our system would be appalled to see how campaign finance practices, negative campaigning, orchestrated grass-roots lobbying and television and radio have made it more difficult for members of Congress to do what is politically unpopular in their districts but right for the country.Thomas Mann 1993 Testimony - House Congressional Record
There are still some cases where closed mark-ups are better. We wouldn’t have had 150 amendments to the energy bill if the lobbyists hadn’t been there – we’d only have had 10 or 15.Rep Harley Staggers (D-WV) 1973 Senate and House Open Up their Sessions
When a man thinks his words are to be repeated, he has an eye to the ultimate consumer. Instead of talking solely to those who are to make the immediate decision, he frequently talks with remote effects in mind. This would turn a public committee conference into a sparring spectacle for personal or party advantage. It is for this reason that parliamentary law frowns on any reference in debate to what has been said in committee conferences.Robert Luce 1922 The Science of Legislation
Opponents of the (transparency) rule warned that it would encourage members to show off for the press and allow lobbyists to intrude on deliberations… One staff member said the open mark-up sessions slowed the committee’s work when it was dealing with controversial legislation, because members became “more vocal” for the benefit of lobbyists – and for reporters who might quote them in the next day’s papers. Lobbyists had been known to hand members notes with suggested amendments, he said, and “sometimes you even had applause and the chair had to bang for order.”CQ Quarterly 1973 Senate and House Open Up their Sessions
Delegates, Trustees and Transparency
Interested parties, not the general public, monitor the public sessions of agencies in order to influence outcomes.Bruce Cain (Stanford) 2016 Is our Government too Open?
The political actors with the greatest monitoring advantages are legislative party leaders – particularly those from majority parties or coalitions that control legislative agendas. Interest groups with substantial resources, including lobbyists or staff poised to oversee legislative activity, may also be able to monitor signal votes on the assembly floor. Actors motivated to monitor, but with disadvantages in doing so, include nongovernmental and watchdog organizations with constrained resources, journalists, and academics. John M. Carey 2009 Legislative Voting and Accountability
Legislators in Bolivia and Colombia – even those who strongly favored recorded voting themselves – described a general lack of public attention to individual legislators’ voting behavior. Nevertheless, there are pockets of interest. Organized interest groups – unions, business organizations, and farmers’ groups – sometimes monitor legislative voting, even in systems where no records are kept, and lobby legislators and party leaders to support their demands. John M. Carey 2009 Legislative Voting and Accountability
The hubris that as we get more educated and we know more we can handle more government responsibility, and when we fail we make possible the kind of polarization, the kind of capture by special interest, the capture by the most partisan of our society. Bruce Cain (Stanford) 2016 Stanford talk: “Is our Government too Open?”
Contrary to the naive sirens of maximum democracy, greater transparency is as much a problem for good governance as it is a solution.Bruce Cain (Stanford) 2016 Stanford talk: “Is our Government too Open?”
Call it the "split-screen" (or "secret") Congress: Out of media spotlight, stalemate is much less common.Sarah Binder 2021 Secret Congress
Today, the injunction of transparency has interfered in the unanimous conception of Western democracy, so that power and the decisions adopted by its holders are expected to become more and more important. As pointed out by G. Carcassonne, “it is by their level of transparency that the institutions will be judged above all, the performance and other conditions becoming only seconds. Only the fully transparent decision process will be considered satisfactory. What does it matter if he/she proves to be incapable of producing the slightest decision or produces only mediocre ones?” And the Carcassone warns: “If transparency is not reduced to what it is, a means, it is a threat, so that democracy has realized the dream of totalitarianism. The demand for excess transparency is no longer the quintessence of democracy, but rather its direct opposite” Chloé Mathieu 2017 Émergence du mythe de la transparence, lobbying et responsabilité des élus
Markets and states jostle to capture transparency arrangements for their own diverse ends, which are not necessarily aligned with assumed normative linkages between transparency, democracy and participation, as well as environmental reform… Transparency has “lost its innocence” as an arbiter of democratic and environmental gains.Arthur P.J. Mol 2014 The Lost Innocence of Transparency in Environmental Politics
We focus on the dynamics of representation that emerged out of the 1970 Legislative Reorganization Act. On balance these moves toward transparency have had tremendously negative consequences. Consistent with the theory, increases in transparency were followed by increased narrow-interest lobbying, wasteful and pernicious legislative gamesmanship, increased partisanship, and more.David King (Harvard) 2017 MPSA submission abstract
Effective government in democratic societies involves two oft competing incentives: successfully campaigning to win office on the basis of grand promises and officeholders’ ability to compromise to achieve meaningful legislative goals. At times, these come into conflict, requiring trade-offs. Politicians must compromise their stated campaign platforms in order to achieve wider political objectives. As Otto von Bismark once quipped, “Politics is the art of the possible, the attainable – the art of the next best.” When making difficult compromises, it behooves all parties to have them occur in committee, behind closed doors. Not doing so runs the risk of having compromising parties labeled as “traitors” or “sellouts.” The consequences of this may seem frivolous, but they could be dire. In the future, individuals who are excoriated by constituents are likely to avoid making concessions to enact meaningful policy, regardless of the success or failure of the policy itself.Edward Hearn 2020 How Much Transparency Is Too Much?
Committee deliberations were gradually opened up to public view, thus distributing information to all interested parties and facilitating the work of senator-interest group alliances… An increasing number of decisions were pushed to the Senate floor – resulting in more roll calls, more floor amendments offered and passed by non-committee members and junior members (Sinclair 1985). While the committees certainly retained the larger share of influence, the balance between the committee rooms and the floor as arenas of decision making changed markedly… A major indicator of the changed balance was the commonplace exercise of the cherished senatorial right to talk – reflected in more “extended debate” on more subjects, more filibusters and threats of filibusters, and more cloture votes as efforts to cut off debate (Sinclair 1985). What was once regarded by most senators as an ultimate right to be invoked sparingly for the good of the community became an everyday weapon in the fight to gain a temporary advantage over one’s colleagues.Richard Fenno 1989 The Senate through the Looking Glass - The Debate over Television
(By opening up the Senate to television) we are no doubt making the most far reaching change here that has been made in a long long time with reference to the possibility of the practices on this floor … we are just opening up a Pandora’s box, and we can very easily carry on all the traditions and needs of the place without this.Senator John Stennis 1982 Congressional Record, 3 Feb. 347
Imagine a situation where the issues we are voting on are very controversial and sensitive and a Member may not have the courage to stand out during roll call and tally; could we rather not have provided for secret voting as was in the previous rules especially to do with issues of constitutional amendments?Monicah Amoding 2017 Parliament House, Kampala, Uganda July 20, 2017
Singaporean Prime Minister Lee Kuan Yew, who presided over Singapore during a period of tremendous economic growth in that nation and throughout much of East Asia, notes that some of the most effective antipoverty initiatives were pursued "behind closed doors" by governments that were illiberal regimes by Western standards. Thus, while transparency may be an important path to better governance , it may not be the only path.Gregory Porumbescu, Albert Meijer, Stephan Grimmelikhuijsen - 2022 Government Transparency - State of the Art and New Perspectives
I can imagine two rebuttals to [the pro-transparency] argument. One is that people ought to be able to petition elected officials secretly, because disclosure can have a chilling effect. For example, in the present climate, Members of Congress might be less likely to meet with Muslim groups if they had to reveal every meeting. But Muslim groups, like all groups, have a constitutional right to petition the government for redress of grievances. Tester’s schedule shows meetings with many mom-and-apple-pie associations, such as “parents of children with disabilities” and the “Inter-Tribal Bison Cooperative.” It is conceivable that he wouldn’t want to show contacts with more controversial organizations and would therefore refuse to see them at all. The second argument is that secrecy actually protects elected officials from undue pressure from lobbyists.Peter Levine 2007 Sunlight, the best disinfectant
Starting with the Legislative Reform Act of 1970 to require a public record of all votes to amend bills in the House, continuing through the trumped-up “scandal” of House Bank overdrafts in 1991, and culminating in the almost-total abolition of earmarks in 2012, generations of high-minded public servants have labored to make the Congress more transparent, more accountable, and more democratic (with a lower-case “d”). Young idealists rebelled against the party elders, men like the Southern Democrats who had stood in the way of civil rights, or for that matter like the great bully Lyndon Johnson, who got the Civil Rights Act passed. The power of committee chairmen to trade favors and make back-room deals declined. And, at the same time, Congress kept getting more partisan, more ideological, and more dysfunctional.Sydney J. Freedberg Jr. 2013 Against Integrity: Why A More Corrupt Congress Could’ve Fixed The Fiscal Cliff
It is important, as we review the Muskie legacy, to understand several things: First, as I noted before, there were no federal laws of any kind on any subject which had deadlines, statutory standards, mandatory requirements or citizen enforcement rights. There was very little opportunity for the public to participate in policy decisions. There was very little government outreach. There was very little sunshine, a lot of darkness, and most public policy was at the discretion of the political appointees or bureaucrats. Second, consensus was a more effective tool for advancing public policy than was a confrontation. Members of Congress, House and Senate, actually got things done by working with their colleagues across the aisle. It was commonplace to have major policies cosponsored by members of both parties. Third, before 1973, the Committees of the Congress met behind closed doors. The concept of open decisions openly arrived at simply didn't exist. Fourth, there were very few "lobbyists" - people who plied the trade of influencing Members of Congress on behalf of specific clients. That is not to say they didn't exist. There just weren't that many. Fifth, campaigns were financed very differently. Senator Muskie's last campaign for United States Senate, in 1976, cost less than $160,000. Senator Muskie spent virtually none of his time raising money or calling contributors. He literally hated asking for money. While he had done that to a degree when he was a candidate for President, even then most of the fundraising was done by third parties. Sixth, political action committees, as we now know them, didn't exist. Business contributions to Members of Congress came from the pockets of the businessmen themselves, not their political committees. Corporate money could not be spent to create PACs and corporations could not contribute to federal campaigns (or to state campaigns in 22 states). It was the philosophy of elected Members of the Senate and the House which dictated the nature of the legislative initiative rather than the influence of the special interests who had endeared themselves to a Member through campaign largesse. Seventh, there were very few staff. The initial work by the Air and Water Pollution Subcommittee was done with personal staff assisted by bureaucrats seconded from the Public Health Service. The contributions of the Senator's Administrative Assistant Don Nicoll and his colleague Caleb Boggs' (R-DE) legislative assistant Bill Hildenbrand was critical to his early success. The 1970 Clean Air Act was the product of staff work of no more than 15 people and most of the staff recommendations were the responsibility of four key staff. Members were Members; staff were staff. And we were frequently reminded if we forgot the distinction.Leon J. Billings 2005 The Muskie Legacy (Climate)
A trade-off between transparency and effectiveness of parliamentary legislative activity does exist: a sort of ‘transparency trap’ for legislatures, having its main point of reference in the impairment of legislative committees’ decision-making capacity. Indeed, increased levels of transparency favor an institutional move towards assigning an overarching importance to the most sensational declarations and to populist tones, which can have an immediate echo in the media. Such a move, however, needs to fit in with the activity of bodies such as legislative committees, specialized by subject matter, in charge of drafting or amending legislative acts, often dealing with highly technical issues and within which compromises and negotiations are essential.Cristina Fasone & Nicola Lupo 2015 Transparency vs. Informality in Legislative Committees
A further argument against opening deliberations is that it will discourage candor and the proceeding will degenerate into selfserving speeches designed to cater to viewing voters. Senators, it is argued, will be more honest, reasonable and open-minded in private. Closed deliberations allegedly allow them more time to ponder the ramifications of their decisions before they commit themselves to an unwise course which would be difficult to reverse once publicly declared… Finally, some senators argued that opening deliberations would unduly politicize the discussions in the Clinton trial. They feared the Democrats would use them as a platform to attack Kenneth Starr and expose unpopular sentiments in favor of Clinton's removal. Alexander Hamilton warned us 200 years ago that impeachments were by their very nature political. It was for that reason the Founding Fathers lodged the impeachment power in the legislative branch. Marjorie Cohn 2000 Open-and-Shut: Senate Impeachment Deliberations Must Be Public
The article argues that increasing levels of transparency can impair committees’ lawmaking performance, so also undermining the lawmaking ability of their legislatures. In three very different legislatures (the US House of Representatives, the Italian Chamber of Deputies and the European Parliament), both in institutional architecture and committees’ legislative powers, the growing transparency of their legislative activity has caused a shifting of the legislative decision-making away from committees or, even, outside the legislature.Cristina Fasone & Nicola Lupo 2015 Transparency vs. Informality in Legislative Committees
As long as it is also believed that representatives should exercise a degree of independent judgement, then transparency can also have costs. I have argued that recent discussions of transparency in government have often overlooked this fact… With regard to polarization, while one might think that the institutional changes of the past forty years to promote openness in government should logically have reduced opinion polarization, the theoretical model presented here suggests why they may have actually had the opposite effect.David Stasavage 2006 Polarization and Publicity
FDR put together a committee to come up with a plan to create a basic social safety net, but committee members could not make up their minds how to move forward. Perkins continued to hammer on the idea they must come up with a final plan, and finally locked the members of the committee in a room. As she recalled: “Well, we locked the door and we had a lot of talk. I laid out a couple of bottles of something or other to cheer their lagging spirits. Anyhow, we stayed in session until about 2 a.m. We then voted finally, having taken our solemn oath that this was the end; we were never going to review it again.”Heather Cox Richardson 2021 Letters from an American (Beginnings of Social Security)
Publicity of debate may prompt representatives to use their actions or statements as signals that they are being faithful to constituent interests. Under these conditions, publicity has the advantage of disciplining representatives, but it also implies that constituents will learn little from a debate in which representatives always take actions or make statements that are expected of them.David Stasavage 2006 Polarization and Publicity
First, we discuss different theories of decision making from which plausible causal mechanisms that may drive a link between transparency and legitimacy may be derived. We find that the common notion of a straightforward positive correlation is naïve and that transparency reforms are rather unpredictable phenomena.Jenny De Fine Licht, Daniel Naurin, Peter Esaiasson, Mikael Gilljam 2012 When Does Transparency Generate Legitimacy?
Too much publicity does not lead to more democracy. I think it's a basic human right that in order to become more wise every debate is an attempt to be to become more intelligent more knowledgeable and you have to be able to do that without everybody listening in order to do it right because you have to discuss difficult questions you have to have the right to make a mistake in order to learn how to overcome this mistake. When everybody is looking all the time you are so afraid to make a mistake that you don't really touch the real issues you don't touch the real way and you are not coming out of yourself you're playing a role you're an actor and not a citizen.Swiss Parliamentarian Andreas Gross 2010 How Much Democracy is Too Much?
And in another country, thought of as just as much a democracy, they will not have all their committee meetings…all open to the public. They will recognize that a certain amount of dialogue has to occur between representatives to reach a consensusAttorney George Kieffer 2010 How Much Democracy is Too Much?
Though openness in government has obvious benefits, recent scholarship has devoted less attention to the possibility that it might also have costs. I use a formal framework to investigate the effect of public versus private decision making on opinion polarization. Existing work emphasizes that public debate helps to reduce polarization and promote consensus, but I argue that when debate takes place between representatives the opposite may be true.David Stasavage 2006 Polarization and Publicity
The reforms of the 1970s opened up Congress so that instead of a few powerful people receiving lobbyists we had lots of independent entrepreneurs doing business. We suddenly had a huge bidding war, with 535 people vying for campaign money from special interest groups… What Vietnam and Watergate did was help destroy the public’s confidence in government itself. But I think the institutional forces that I mentioned are more central.Jonathan Rauch 1997 Sidebar to “Running Scared”
As though this were not enough, voters would know precisely who to blame for any price or tax rises that cook place: the politicians in Washington who voted for them. The decision to raise prices or taxes would be every elected politician’s worst fear – “traceable.”Anthony King 1997 Running Scared
Our results suggest that enhancing the transparency of politics may not be a desirable thing to do. In particular, our analysis has pointed out a particular mechanism that may generate a perverse relationship between the transparency of politics and the quality of politicians.Andrea Matozzi & Antonio Merlo 2007 The Transparency of Politics and the Quality of Politicians
It will be a fraud that can only lead to greater public disillusionment, however, if members fail to explain that all the sunshine reforms in the world cannot (and should not) put the totality of legislative politics on public display.Richard Fenno 1977 Congress Reconsidered – 1st Ed
While the two streams of reform may enhance the representative possibilities of Congress, we should also acknowledge that they will probably slow down the productivity of Congress. The greater the fragmentation of influence, the harder it is to develop or assert internal leadership. And the more open the internal operation, the easier it is for external groups to interpose their wishes at all stages of the process. That is, the weaker the leadership and the more the external demands, the slower will go the lawmaking. If what we want from Congress is action, neither type of reform can be viewed as a blessing.Richard Fenno 1977 Congress Reconsidered – 1st Ed
Others have made attempts to discredit what is described as “secret diplomacy,” without reflecting that negotiation, if it is to be successful, cannot be carried oon upon the housetops… Nothing is to be gained by taking the world prematurely in the confidence of governments in regards to matters of high policy.Ernest Satow 2011 A Guide to Diplomatic Practice
Open negotiations incline negotiators to consider their own prestige and to maintain the arguments… with undue obstinacy and prevent them from giving way to the frequently superior arguments of the occasion.Louis XIV 1680 Efficient Secrecy (Kurizaki)
Rhode Island’s Claiborne Pell feared that “the presence of television will lead to more, longer, and less relevant speeches, to more posturing by Senators and to even less useful debate and efficient legislating than we have today.”… Russell Long from Louisiana also argued against the proposal, claiming that senators would posture in front of the cameras and that television would attract senators to the chamber floor when they should be doing the important work in committee meetings. Others feared that some senators, in an effort to compete with their House colleagues, would enlist the services of elocution coaches and even makeup experts. William Proxmire from Wisconsin, another opponent of televised proceedings argued that television would make if harder for Senators to reach compromises in private because “senators will find that the positions they took in their opening statements have been engraved in film.” “Television thrives on the dramatic,” Proxmire said, and “any additional incentives to confrontation can only mean more argument – and probably worse legislation.”David B. Frost 2017 Classified - History of Secrecy
Secrecy, like openness, remains an essential prerequisite of self-governance. To be effective, even many of the most mundane aspects of democratic rule, from the development of policy alternatives to the selection of personnel, must often take place behind closed doors. To proceed always under the glare of the public would cripple deliberation and render government impotent. And when one turns to the most fundamental business of democratic governance, namely, self-preservation—carried out through conduct of foreign policy and the waging of war—the imperative of secrecy becomes critical, often a matter of survival. Even in times of peace, the formulation of foreign and defense policies is necessarily conducted in secret.Gabriel Schoenfeld 2011 Necessary Secrets
All these [sunshine] reforms were made with good intentions in mind, but did come with one downfall; now, not only did American citizens have access to their representatives, unlike before, but so too did lobbyists. More often than not, representatives of special interests, not US citizens, took advantage of open congressional committee meetings and submitted Freedom of Information Act requests (Kennon & Rogers 1989, Pozen 2017). Furthermore, Congress members favored special interest donations over individual contributions in the campaign finance amendments, which “diminished the character of Congress but now seem impervious to change by a Congress elected under them” (Herbers 1982, para. 15).
With this newfound transparency to members of Congress and legislative proceeding s, lobbying increased exponentially throughout the 1970s. Between 1968 and 1978, the number of corporations with public affairs offices in Washington, DC multiplied by five, from 100 offices to over 500 (Ranalli et al 2018). Additionally, between 1971 and 1982, the number of registered lobbyists located in Washington, DC grew from 175 to 2,445 (Drutman 2015). In a similar vein, the total number of lobbyists for corporations in Washington, DC grew from roughly 8,000 in 1974 to near 15,000 in 1978 (Wilson 1981). Even with the rise of lobbying in Congress, members still found loopholes to get around the transparency found in the Sunshine Law. For example, members found “they could conduct important business in closed, informal sessions in which they could speak confidently and get around the law” (Herbers 1982, para. 15).
Since the government implemented Sunshine laws, scholars now understand that “open door committees and public roll-call votes lead to gridlock, partisanship, legislative warfare, soaring campaign finance, and special interest capture” (D’Angelo & Ranalli 2020, par. 1). Prominent congressional scholars have also been critical of the impact of Sunshine laws (Arnold 1990; Binder 2006; Fenno 1977; Wolfensberger 2000). For example, Arnold wrote: “Two decades later, after the advent of sunshine laws, we know better. Open markup sessions often given organized interests a powerful advantage over inattentive citizens, for they can monitor exactly who is going what to benefit and hurt them” (1990, p. 131 ).
NOTE: This article is just one of many in a book edited by Michael J. Pomante II titled Scandal and Corruption in Congress. Oddly the book appears focused on rethinking corruption and taking in new ideas, yet finds itself grounded in the discredited narrative of venal legislators. The book makes over a 100 references to bribery (though scholars continue to show that bribery is not a driving factor), while it entirely ignores intimidation, something which is cited endlessly by scholars and others.
In the early seventies, Public Works Committee staffers conceived some of the Clean Water Act’s more radical features and helped channel the ecological knowledge that inspired them. Even so, the final product grew out of an extended conversation among the senators themselves behind closed doors. During their colloquy, they vetted the feasibility of the legislation’s objectives…Party affiliation certainly colored individual opinions, but the senators’ cooperative efforts and collective identity as legislative policy specialists tended to trump partisan differences. The result was a water pollution bill whose content surprised both sides of the political divide… Yet, much to his chagrin, in 1972, Muskie found himself defending the Clean Water Act’s provisions from both its foes as well as its putative friends.Paul Charles Milazzo 2016 Unlikely Environmentalists: Congress and Clean Water, 1945 - 1972 (Climate)
NOTE: This next citation is from book introduction and highlights how legislative action preceded public action: “Environmental activism has most often been credited to grassroots protesters, but much early progress in environmental protection originated in the halls of Congress. As Paul Milazzo shows, a coterie of unlikely environmentalists placed water quality issues on the national agenda as early as the 1950s and continued to shape governmental policy through the early 1970s, both outpacing public concern and predating the environmental movement.”
[Fearful of lobbyists from both sides of the issue, members wrote environmental policy behind] closed doors during the summer and fall of 1971. Senate staff members had deliberately limited access to external petitioners. The committee's relationship with industrial organizations in particular was often antagonistic, but Leon Billings and Tom Jorling also kept environmentalists at arms length to avoid “endless sub-negotiations” over the “smallest details.”Paul Charles Milazzo 2016 Unlikely Environmentalists: Congress and Clean Water, 1945 - 1972 (Climate)
NOTE from book introduction: Environmental activism has most often been credited to grassroots protesters, but much early progress in environmental protection originated in the halls of Congress. As Paul Milazzo shows, a coterie of unlikely environmentalists placed water quality issues on the national agenda as early as the 1950s and continued to shape governmental policy through the early 1970s, both outpacing public concern and predating the environmental movement.
I was calling in simply because I had been for a long time, the minority staff director of one of the congressional committees and I was going to offer a comment on this issue of open versus closed meetings. Prior to the adoption of the rule requiring open markups and open conferences, I think that the process of a executive session for the consideration of a bill was a far more meaningful process because the members came in and really, honestly debated many of the issues. Whereas, I think today the tendency is to resolve most of the more controversial questions before you get to the markup. And it in turn becomes almost a pro-forma show for the audience without any real serious hard give-and-take among the members when they're standing there in front of the audience. They're playing to the audience. Whereas in a closed session, they tended to really be addressing each other seriously on the issues. I can recall back when, for example, we held markups on some of the early environmental laws on NEPA, for example, the Endangered Species Act and various other environmental bills. This is in the house Merchant Marine Committee. If we had been having an open session it would have been a disaster.CSPAN caller Jacqueline Calmes 1987 Closed Door Meetings C-SPAN (Climate)
Getting the bill through committee hearings meant dodging hundreds of lobbyists – Mr. Packwood once called them “assassins” – who dogged his path for two months. It also meant dealing with bickering Senators on the committee. When it looked as if the bill would be killed by special interests, Mr. Packwood ordered members behind closed doors. The panel finally voted 20-0 for the measure and gave the chairman a standing ovation.UPI/NY Times 1987 Tenacious Packwood Saved Tax Bill
Another instance of a reform law that needs reforming is the “sunshine” rule change that David Cohen cited as one of Common Causes victories. Until 1973, Congressional committee chairmen had the authority to conduct “markup” or bill-writing sessions in private, behind closed doors. Today, a majority of the committee must vote to allow this. As a result, most markup sessions are now open to the public. This reform was at first praised us a triumph for open government. But it turns out that most of the people who come and sit through the long and tedious hours of Congressional wrangling are nut public-spirited citizens but representatives of the special interests. “Openness attracts the lobbyists, who end up with more, not less, influence,” Michael Malbin said recently.Tom Bethell 1980 Taking a Hard Look at Common Cause
Too much sunshine actually burns and I think in some cases we’ve got to be concerned about how much transparency there is because it has had a very stilting affect. It has caused a constraining environment in regards to Members’ ability to express themselves in an honest and candid way as discussions are held on legislation.Tom Daschle 2014 C-SPAN Tom Daschle on Bipartisanship (18 minutes 29 seconds)
In this climate, the first nationwide air pollution standards were crafted with Billings, typewriter at the ready. Provision by provision, negotiated behind closed doors – as was legal then – with Democrats and Republicans.Jayme Fraser 2016 Progressive era inspired Clean Air, Clean Water acts (Climate)
A legislator can hardly turn around or make a move in the corridors of the State House without being confronted with a veiled threat of the effect on his political fortunes of a vote for or against a particular proposition. Sometimes the threat is not very well veiled.Henry Parkman, JR 1938 Lobbies and Pressure Groups: A Legislator's Point of View
The clear merit of the position in favor of maintenance of high standards… almost went down before the intensity and the violence of an organized onslaught, conducted largely by methods of terrorism under the cloak of opening the door of opportunity to the poor man.Henry Parkman, JR 1938 Lobbies and Pressure Groups: A Legislator's Point of View
Most important — and completely ignored by the champions of transparency — is the fact that even the most conscientious citizens, dedicated to following public affairs, have but one vote to weigh in on myriad issues. Most of the time, citizens cannot vote up or down any specific program. Exceptions include some local or state initiatives, such as bonds for schools or referenda on social issues like gay marriage. However, most of the time, especially at the national level, voters cannot be in favor of, say, much more funding for climate change, only a little more funding for ocean exploration, and less funding for bombers (or any such other combination). Rather, all they can do is vote up or down their representative, who, in turn, votes on many scores of programs. Amitai Etzioni 2014 – Atlantic Transparency is Overrated
If the collegial body were to open such meetings to the public, their effectiveness, in terms of the free flow of ideas and exchange of views, would be crippled… Candid debate shrinks from the public gaze, with grandstanding a frequent substitute… The Sunshine Act should tolerate more darkness.Bevis Longstreth 1983 A Little Shade, Please
If administrators had to do everything in the open, they might be forced to express only safe and uncontroversial views, and thus to bypass creative or still tentative ideas. As a result, they might end by assuming hasty and inadequate positions. Chances to learn might be lost; premature closure with respect to difficult issues would become more likely. In order to create a pattern out of chaos and avoid haphazard choices, administrators must be able to consider and discard a variety of solutions in private before endorsing some of them in public; the process of evolving new policies requires a degree of concealment. For these reasons, unfinished drafts and memoranda and bargaining positions in negotiations are often kept secret, though the final statements are not. Sissela Bok 1982 Secrets - On the Ethics of Concealment
Since the markup session involves the refinement of language, resolving conflict on concepts, and differences of opinion on the ultimate intent of a bill under consideration, the markup sessions are usually closed to the general public and to lobbyists. This has caused some consternation among lobbyists, since they think that the “give and take” inherent in these sessions should be subject to public scrutiny and to their influence… [But] those not familiar with the inner workings of the legislative process often misinterpret the markup sessions as “closed” sessions in the sense of secret deliberations. All members of Congress know that the markup session is deliberation in its finest form.Thomas Bradford Curtis, Donald L. Westerfield 1992 Congressional Intent
When Rupert Murdoch’s Boston Herald offended Massachusetts Senators Kennedy and Kerry, they conspired behind closed doors with liberal and conservative legislators from both parties to pass, without debate, a bill that required Murdoch to sell the paper or lose his Boston television station.Michael McMenamin 2008 The '80s Will Be Remembered (Fox News)
As the British Francks Committee wrote in 1972, ministers and administrators must, in order to present clear issues to Parliament and to the electorate, be able in some instances and at some stages ‘to argue out all the possibilities with complete frankness and free from the temptation to strike public attitudes.‘Michael Dougan 2012 Empowerment and disempowerment of the European Citizen
In the eighteenth century, the sovereigns in question were usually individuals. Today they are hundreds of legislators, millions of newspaper readers, radio listeners, or television viewers. Particularly, our sovereigns are voters and they are the subject of every kind of mass appeal and mass flattery by those who want their votes. In such circumstances the inflexibility which open negotiation encourages is apt to harden into complete rigidity.Lester B. Pearson 1955 Democracy in World Politics
Walter Oleszek on Transparency as a driver of Partisanship 1999
Almost everyone connected with the process agrees the legislation being written would be even more riddled with gifts to special interests if it were being done in public. Supporters of closed sessions argue that it speeds the process since members don’t feel as much need to posture on issues for an audience and that it provides protection from lobbyists for special interests.Lea Donosky 1985 Tax Reform Behind Closed Doors
With the media, ordinary citizens, and campaign contributors watching, they must take care to protect their electoral flanks. Increasingly, committees have resorted to “executive” or “informal” sessions, held prior to official meetings, where the members can talk freely and develop compromises without the intrusive presence of outsiders. In formal meetings legislators may do little more than ratify agreements reached in private. Rep. Bill Frenzel (R-Minn.), who began his legislative service as a self-proclaimed “open meeting freak,” observed that “since our meetings have been closed, our work has been less flawed… and our consensuses much stronger. I think it’s the only way to fly.” The presence of lobbyists and administrative officials at public sessions – where they can monitor members’ behavior, offer the texts of amendments, and notify their employers when and where to apply pressure – may have made it more difficult for committees to act decisively, to be responsible.
The rise of single-interest groups and PACs during the reform era may have made legislators less willing to risk offending any potentially decisive electoral force. Prudent lawmakers may feel obliged to resist party or presidential calls for support. Previously, members could affirm their support undetected, in the quiet of the committee room, or in a standing or teller vote on the floor, but at present there are dangers in doing so. Members may be loath to act at all, preferring to entrench themselves as ombudsmen and claiming credit for serving the district; or they may limit their policy making to “position taking” – choosing sides on substantive questions only when it is safe to do so. They may even obfuscate their stands to minimize the danger of being caught on the wrong side of a policy issue that turns out to be controversial.Larry Rieselbach 1994 Congressional Reform
There are times, perhaps, when issues are better resolved in a more private and orderly environment than in the committee room open to the media and the public. This is accomplished, however, through “executive sessions” of the full committee, and not with lobbyists approaching congressmen one by one, separate and apart. Quiet diplomacy and compromise are hard to accomplish in the glare of news cameras and when parties to the hearing are competing for the public spotlight. Curtis & Westerfield 1992 Congressional Intent
May a Senate Vote to Remove by Impeachment be Taken by Secret Ballot? In theory yes, but it would be poor constitutional practice. The Rules of Procedure currently stipulate that each senator announce his or her vote on each Article of Impeachment. Two-thirds of the Senate (67 senators) would need to approve an amendment or suspension to this rule. Thus, in theory the Senate could specify that the impeachment vote be conducted by secret ballot. As an historical matter, Congress twice broke Electoral College gridlock by the House picking the president by secret ballot, electing Thomas Jefferson in 1800 and John Quincy Adams in 1824. Article 1, Section 5, of the Constitution states that one-fifth of the senators present can oppose a secret ballot on “any questions,” defined as “[a]ny matter on which the Senate is to vote, such as passage of a bill, adoption of an amendment, agreement to a motion, or an appeal,” but makes no mention of impeachment proceedings. But just before this requirement is the language: “Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy,” which might be construed to permit secret balloting. Insofar as the Senate has relatively untrammeled power to make its own rules governing each impeachment proceeding, in theory those rules could include a secret ballot. Russ Feingold (D) and Chuck Hagel (R) 2019 residential Impeachment Trial
If transparency has no meaningful effects, then the idea of transparency can lose its purpose. If corrupt practices continue after they have been made transparent, “public knowledge arising from greater transparency may lead to more cynicism, indeed perhaps to wider corruption.”Mike Ananny & Kate Crawford 2016 Seeing without knowing: Limitations of the transparency ideal
The imagined marketplaces of total transparency have what economists would call perfect information, rational decisionmaking capabilities, and fully consenting participants. This is a persistent fiction.Mike Ananny & Kate Crawford 2016 Seeing without knowing: Limitations of the transparency ideal
The views of Common Cause activists epitomize elite distrust of a basic element of politics, and of Democratic politics in particular: the bartering and trading of votes, favors, jobs, and other benefits, often behind closed doors, which make the negotiation and resolution of much larger issues possible, facilitating those compromises essential to the operation of government, particularly in the pluralistic, nonideological politics of the United States.Thomas Edsall 1984 The New Politics of Inequality
The new aim was to clean up government, to impose a system of ethical norms on elected officials,… to insure public access to official proceedings… These changes unquestionably increased public access to both the legislative and executive branches of government, although it is curious to note that there are still no representatives of the general-interest press and television at the overwhelming majority of congressional committee sessions. Instead, public access to these meetings is used primarily by lobbyists and publications catering to special-interest groups. Similarly, the Freedom of Information Act is used far more by corporations seeking to gain an advantage over, or information about, competitors than for the disclosure of governmental activity to the general public. Along the same lines, campaign reforms have made information on sources of political financial support more accessible, but these reforms have given institutional legitimacy to many of the practices reformers were struggling to restrict.Thomas Edsall 1984 The New Politics of Inequality (FOIA)
From time immemorial, human beings have been bargaining with each other under challenging and complex circumstances—both external-contextual and internal -psychological. One factor in particular combines both attributes: the presence of a “salient audience.” Audiences, the negotiator’s ‘public’, ‘constituency’ or other group, exert enormous pressure on negotiator behavior simply by existing. In international conflicts, audiences do more than simply exist: they mobilize to shape a leader’s agenda, affect the process, conduct and substance of negotiations, and sometimes they try to exercise control over the political and even physical survival of the negotiator. This is the ‘audience effect’ … The mutual dependence between leader/negotiator and public/constituency is well known. And yet it can work against the interests of the negotiator. Rubin & Brown noted a marked tendency for negotiators to make moves damaging to the negotiator’s and constituents’ interests, ironically, because of the audience effect. Walton & McKersie observed that in labor management negotiations, principal negotiators would sometimes deliberately resort to secrecy to keep their own side in the dark about concessions. Between the negative effects of publicity and the positive advantages of bargaining in the shadows, it is a wonder that more negotiations are not conducted in this manner.Anthony Wanis-St.John 2004 Back Channel Diplomacy: Implications for Practice and Theory
The secrecy that is present in back-channel-diplomacy… produces a ‘package’ of benefits for the political decisionmaker. The benefits of secrecy are evident throughout these cases: secrecy helps the parties manage four categories of uncertainty that affect negotiations. These are: 1. Uncertainties regarding the cost of entry into negotiations – concerning the preconditions set by one or both parties prior to negotiations 2. Uncertainties regarding the actions of ‘spoilers’ –parties who can act to destroy an emerging peace arrangement 3. Uncertainties about information needed to negotiate – the true preferences of parties, the feasibility of solutions 4. Uncertainties concerning outcome – leaders prefer not to negotiate in front channels when they deem the risk of failure to be high.Anthony Wanis-St.John 2004 Back Channel Diplomacy: Implications for Practice and Theory
During the past generation many of the gatekeepers of the old political order were swept aside. The governmental process became more permeable as political institutions and processes became increasingly open to popular participation and increasingly subject to popular influence. The 1960s protesters demanded “power to the people,” and apparently they got it. The great irony, then, is that after this explosion of openness and the transfer of power to the people, turnout in elections fell and trust in government plummeted. Against all natural expectations, Americans liked their government better, trusted their leaders more, and voted in higher numbers in the bad old days when party bosses chose nominees in smoke-filled rooms; when several dozen old White men (mostly Southerners) ran Congress; when it was more difficult to get a hearing in court; when legislatures, agencies, city councils, and local boards made decisions behind closed doors; when big business, big labor, and big agriculture dominated the interest group universe; and when politicians didn’t have the tools to figure out what their constituents wanted. Why?Mo Fiorina 2011 Disconnect: The Breakdown of Representation
Overall, our review [of transparency and accountability studies] found that much of the current evidence relies on untested normative, positivist assumptions and under-specified relationships between mechanisms and outcomes. Much of the empirical work reviewed is based on poorly articulated, normatively-inspired ‘mixes’, that draw unevenly from the concepts of transparency, accountability, good governance and empowerment. Virtually none of the literature gathered explores possible risks or documents negative effects or arising from TAIs, although some begins to note these at an anecdotal or speculative level.Gaventa & McGee 2011 Impact of Transparency & Accountability (evidence)
Nothing in the Constitution requires public sessions of Congress, let alone public hearings of its committees or public votes. In fact, the Constitution makes no mention of committees at all. One of the first decisions of the First Continental Congress in September of 1774 was to keep its proceedings secret, the custom of the colonial assemblies. Likewise, the Constitutional Convention’s proceedings in 1787 were secret. However, one of the rules proposed for the Convention would have permitted any member to call for the yeas and nays on any matter voted and the printing in the minutes of the names for and against. According to James Madison’s notes, Rufus King of Massachusetts objected to the rule on grounds that it was unnecessary since acts of the Convention were not binding on constituents. Moreover, he argued that such a record of votes would be “improper as changes of opinion would be frequent in the course of the business and would fill the minutes with contradictions.” George Mason seconded King’s objection. A record of the opinion of members “would be an obstacle to a change of them on conviction,” and, when promulgated in the future, “must furnish handles to the adversaries of the Result of the Meeting.” The rule was subsequently dropped by unanimous consent.Donald Wolfensberger 2000 Congress and the People
The constitutional provision for obtaining a recorded vote by a demand for the “yeas” and “nays” is not construed as applying to the committees of the House, even to one consisting of all House members (the Committee of the Whole). The policy of nonrecorded votes in the Committee of the Whole remained part of House rules until 1971 [due to the Legislative Reorganization Act signed by President Nixon in late 1970]Donald Wolfensberger 2000 Congress and the People
Note: Wolfensburger refers to the constitution Article 1, Section 5 which states: Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.
It is expected our doors will be shut, and communications upon the business of the Convention be forbidden during its sitting. This, I think, myself, a proper precaution to prevent mistakes and misrepresentation until the business shall have been completed, when the whole may have a very different complexion from, that in which the several crude and undigested parts might, in their first shape, appear if submitted to the public eye.George Mason 1789 The Constitutional Convention
In addition, “secrets,” as an instrument of power, are more safely hidden in a general ledger of private companies than in the files of the government offices [Behörde]. Therefore, during the capitalist era, the Behörde’s influence on the economy is very limited and the state’s regulations cause unintended and unforeseen “train wrecks.” Likewise, these regulations, coming from public Behörde, often are illusory because of the superior factual knowledge of the people in commerce.Max Weber 1921 Bureaucracy and Secrecy
The conventional wisdom among judges, legislators, the public — and especially the media — is that “open meetings” are a good thing. As a generalization, it is certainly a superficially attractive proposition. On closer examination… open meetings laws of the federal government and forty-eight other states, have only made the inherent problems worse. To capture all discussions merely because they are called deliberations is an impossibility. To try to do so only guarantees that fewer discussions and deliberations will take place, and that fewer wise decisions will be made.Nicholas Johnson 1994 Open Meetings and Close Minds
Newspapers and television corporations and their litigation and lobbying organizations are the most vigorous proponents of openness of meetings unless, of course, it is the media’s records or meetings that are at stake.Nicholas Johnson 1994 Open Meetings and Close Minds
Lobbyists… have a kind of nuisance impact. They can make life somewhat unpleasant for officials who do not go along with them: It is embarrassing to vote against someone who is watching.Lester Milbrath 1963 - The Washington Lobbyists
A staff assistant to one of the labor committees in Congress reports that he has seen committee members switch their vote according to whether it was a voice or a roll-call vote.Lester Milbrath 1963 - The Washington Lobbyists
The major reason for the difference In ratings and for the low rating given by most lobbyists is that publicizing voting records is a powerful and dangerous political tactic open only to groups with considerable power at the polls.Lester Milbrath 1963 - The Washington Lobbyists
Evolution and Future of Congress 2015 - Bipartisan Policy Center. Here, Sarah Binder, referring to work by Colleen Shogan, once again comments on the pitfalls of transparency - specifically having journalists and lobbyists in the room. Oddly Biner feels embarrassed mentioning this in front of the lobbyists and journalists - as seen in this clip – and she has historically fought researchers who advocate for more secrecy with respect to solving partisanship, gridlock, lobbying influence etc. What gives?
To appreciate one of the central virtues of secret balloting, consider the fact that in a number of organizations, the leadership, for obvious reasons, insists that the preferences and opinions of the rank and file be revealed through a hand count instead of a secret ballot. Transparency, in that case, is of way of controlling the membership.Albert Breton 2007 The Economics of Transparency in Politics
Leaders and members regularly set up roll-call (transparent) votes in full knowledge that these votes will have no effect on policy outcomes, but they nevertheless stage them for messaging purposes – that is, to define the differences between the parties in hopes of making their party look more attractive to voters or key constituencies than the opposition. (intentionally driving partisanship)Frances Lee 2016 Insecure Majorities
Why would [representatives] make their actions more easily monitored when, by all accounts, the result is to induce them to take actions (e.g., showing up for roll call votes) that they would refrain from otherwise? Surely such contracts make agents worse off, by reducing their opportunities to act on their own preferences, out of the public glare. It seems at least a little surprising from the agency theory perspective that the political process has increasingly been “opened up” to external view and the politicians have made themselves more and more vulnerable to criminal punishment (among other forms) over time. Why would agents behave this way?John Ferejohn 1999 Accountabiliy and Authority
All three approaches combined to form the Clean Air Act, as the legislation came to be called. What would it take, Muskie asked, for an automobile not to pose a threat to the public’s health? One answer, provided by the director of the National Air Pollution Control Administration, was to reduce its emissions by 90 percent. Liking that answer, Muskie modified the (Climate) bill to require carmakers to reduce toxic emissions by 90 percent in their 1975 and 1976 models—much sooner than anyone had expected. Urged on by Muskie and Baker, the members of the subcommittee approved the more stringent requirements. The vote, like the meetings, was held behind closed doors, which was standard procedure at the time.Susan Dudley Gold 2012 Clean Air and Clean Water Acts
It seems possible that the opening of congressional processes to public view lies behind the relentless decline in public approval of congressional performance over roughly the same period. It is true the decline in approval is not confined to Congress, but then the increasing public access to previously closed processes is not confined to Congress either. John Ferejohn 1999 Accountabiliy and Authority
A number of factors may have contributed to the explosion of corporate lobbying. An onslaught of environmental and consumer regulations in the late 1960s and early 1970s provoked an antiregulatory backlash, and the authorization of political action committees in 1974 encouraged business to take sides in elections. But the most compelling explanation is the revolution in transparency that unfolded at the same time. Before the sunshine reforms, lobbyists could rarely tell for sure whether their targets were voting as intended. That lack of assurance proved crucial to keeping special interests on the back foot. During the deliberations that led to the Tax Reform Act of 1969, for example, members of Congress approved all kinds of special giveaways in open session, but when the conference committee met behind closed doors to draft the final language, it quietly stripped the pork away, dashing the hopes of scores of special interest groups. As the political scientist Lester Milbrath had noted in the early 1960s, “A lobbyist who thinks about using bribery... has no assurance that the bribed officials will stay bought.”James D’Angelo & Brent Ranalli 2019 The Dark Side of Sunlight (Foreign Affairs Magazine)
I feel the committee produces a better bill behind closed doors. There is less posturing, less playing to the audiences. We are able to move much more quickly and I think, in the end, we do a better job.Rep. Gradison 1985 Rewriting Tax Code (Fessler)
The Issue of Transparency In deliberations, there must be an opportunity for private discussions between member states before their positions are made public. If not, compromises become hard to achieve; too much sunshine can freeze positions and reduce flexibility.
Moreover, the more sensitive deliberations of governments in the Security Council should be held in private. When it comes to discussions about peace and security, weapons of mass destruction, and peacekeeping, governments need to work in private, without pressure from special interests as positions are worked out. Governments can be more candid behind closed doors, assured that what they say in private will not be front-page news the next day. I do believe that the Council’s formal negotiations and final decisions must be transparent and that members of the Council should justify their votes to the world.
In the General Assembly, measures can be adopted by acclamation, which means there is no recorded vote, and no one to be held accountable for voting contrary to expectations. But this is standard practice in many democratic fora. Recording every vote in the United Nations system would not be feasible.Kim R. Holmes (US Dept of State) 2003 Democracy and International Organizations
With a closed markup you can always say to lobbyists or constituents that you fought like a tiger for their position and asked for a record vote, but not enough members raised their hands. Members almost feel obligated to demand a record vote in public, and then you have members voting in a way they don’t really want.Rep. Don Pease 1985 Rewriting Tax Code (Fessler)
Perhaps it is not then surprising that public distrust has grown in the very years in which openness and transparency have been so avidly pursued.Onora O’Neill 2002 A Question of Trust (Reith Lectures)
Transparency is expected to strengthen electoral accountability. Yet, initiatives disseminating politician performance information directly prior to elections have reported disappointing results.Guy Grossman, Kristin Michelitch, Carlo Prato 2002 The Effect of Sustained Transparency on Electoral Accountability
Though transparency has political benefits, there are also major political costs to transparency too: within a democracy, transparency incentivizes bullshit.Jimmy Alfonso Licon 2024 In a democracy, transparency incentivizes bullshit*
There is little reason to think that transparency and openness are going to increase trust. Transparency can encourage people to be less honest, so increasing deception and reducing reasons for trust: those who know that everything they say or write is to be made public may massage the truth… Demands for universal transparency are likely to encourage the evasions, hypocrisies and half-truths that we usually refer to as ‘political correctness’, but which might more forthrightly be called either self-censorship or deception.Onora O’Neill 2002 A Question of Trust (Reith Lectures)
The delegates had pledged to keep their deliberations secret—for a term of fifty years—a pledge that worked in favor of men like Madison. And, within the hall, it allowed for a full and frank airing of views.Jill Lepore 2018 These Truths
It is precisely in the committee system that televised transparency has done real damage. The floor of the House and Senate have never really been all that great as venues for deliberation. It’s likely that no one has ever been persuaded of anything on the floor of either house of Congress. But committee work did genuinely have a different character before it was all televised.Yuval Levin 2019 Behind Closed Doors
Queen Victoria once complained of William Gladstone that “He speaks to me as if I was a public meeting.” Time spent with many members of Congress today has this feeling about it too. Too many have just one mode—a performative mode intended to go viral on YouTube — and they employ it even in private conversations, including with one another. A bit more work behind closed doors could help with that.Yuval Levin 2019 Behind Closed Doors
Sunshine Reforms: Progressive reformers, whether Democratic or Republican, have been calling for more “open and democratic” government since at least the 1960s. In fact, the roots of such reform date to Woodrow Wilson and probably even to the Antifederalist concern for more simple, direct democracy. Recently, The Washington Post’s Ezra Klein cited as one of “the 13 reasons Washington is failing,” the idea that “too much sunshine can burn” saying “sometimes, it’s easier to resolve disputes in private.” Madison, of course, would concur. The Constitutional Convention succeeded, in part, because the fifty-five delegates met behind closed doors, under strict confidentiality rules. As witness Madison’s Notes of Debates in the Federal Convention, published only after his death in 1836, delegates were able to repeatedly speak their minds and change their minds across the long summer of 1787. Madison clearly did not think the cure to the ills of democracy is more democracy. He created republican, that is, representative, institutions designed to “refine and enlarge the public views.” Viewing the sausage-making of the legislative process, especially under the unblinking stare of the media, has probably not increased citizen trust in government. The decline in trust of government since the 1960s is coincident with transparency reforms.William F. Connelly, Jr 2013 Partisan, Polarized, Yet Not Dysfunctional?
My bottom line is that closed mark-ups can often produce better legislation and therefore serve the public interest.Rep Don Pease 1984 Opening up Congress
Historically, assemblies have not always granted publicity of their debates. They have often denied the public access to their proceedings and also used secret voting to allow their members to shield themselves from the public, from the executive, or from the political parties to which they belong.Jon Elster 2013 Securities Against Misrule
Trying to make government more accountable has backfired… And yet, when government seems to fail, Americans habitually resort to the same solutions: more process, more transparency, more appeals to courts. Each dose of this medicine leaves government more sluggish. To counter the ensuing disappointment, reformers urge yet another dose. After Speaker Tip O’Neill retired from Congress, in 1987, an interviewer asked him how the House of Representatives had changed over his 35 years of service. He memorably answered, “The people are better. The results are worse.” His answer might be generalized across the American system of government: the process is better (at least as better is conventionally defined: more transparent, more participatory), but the results are worse. David Frum 2014 The Transparency Trap
Reformers keep trying to eliminate backroom wheeling and dealing from American governance. What they end up doing instead is eliminating governance itself, not just in the White House but in Congress, too.David Frum 2014 The Transparency Trap
The broadcasting of floor activities would seriously impair the ability of members to perform their legislative duties in an atmosphere of free, open and robust debate.
It is not difficult to envision members scrambling to the floor to get before cameras in order to impress the voters back home instead of persuading other members, producing much oration and little debate.
What is more, oratory would become the chief, if not the only, criterion of legislative ability, to the disadvantage of those members who contribute their valuable skills and knowledge in countless other ways. Not every member of Congress wishes to strut upon the stage of public acclaim.Jesse Helms 1974 Congress Report Asks TV Coverage
The more vigorous activity of interest groups demonstrates their adaptation to changes in the political system. At the start of this chapter we listed several factors which inhibited the power of interest groups, particularly in electoral politics, and which made it wise for lobbyists to adopt a restrained approach. Chief amongst these were the electorate’s ignorance of issues and attachment to party labels, the power structure in Congress, which gave the most power to the least electorally vulnerable, and procedures such as voice votes or closed committee meetings which screened legislators from public scrutiny. Most of these defenses against pressure-group power have been weakened or have disappeared.Graham Wilson 1981 Interest Groups in the United States
During the 1980s there was some retreat from the [sunshine] reforms, including votes by a number of key panels to close their doors during consideration of major legislation. Votes to close committees had to be conducted in open session by a roll call with a quorum present. The House Ways and Means Committee, perhaps the most heavily lobbied committee in the House, chose to close its doors to write such landmark legislation as a historic tax-overhaul bill in 1985 and trade and catastrophic illness insurance bills in 1987. Ways and Means chair Dan Rostenkowski, D-Ill., argued: “It’s just difficult to legislate. I’m not ashamed about closed doors. We want to get the product out.” Other panels – notably House Appropriations subcommittees – also met privately to draft legislation. Sometimes committees’ decisions were made by small groups of members behind the scenes and then ratified in open session. Defenders of closed sessions argued that committee members were more candid, markups more expeditious, and better laws written away from lobbyists’ glare.CQ 2013 How Congress Works
Most of the studies of the Congress of the 1950s emphasized additional techniques, which the legislator could use to avoid unwelcome pressure from interest groups. Many of these turned on adroit use of Congressional procedure. Rather than oppose an interest group publicly, thus encouraging retaliation, legislators could have a ‘voice vote’ in which the position of each individual would not be recorded. Legislators could vote for a general position favored by interest groups, but could support amendments undermining the bill. Legislators could acquiesce in the adoption of conference-committee reports which were worded in such a way that they electively sabotaged the bill they supposedly approved.Graham Wilson 1981 Interest Groups in the United States
Judicial nominations have grown exceedingly contentious. In the nineteenth century, Supreme Court nominations went directly to the Senate floor, rather than to committee. Senators debated these nominations behind closed doors to shield the nominees’ privacy and to talk candidly. Donald Ritchie 2010 Congress: A Very Short Introduction
Some members have regretted ever permitting the TV cameras in, blaming television for heightening partisanship and confrontation, since members now felt they had to speak on every issue and answer every charge.Donald Ritchie 2010 Congress: A Very Short Introduction
At first, anyone could wander onto the floor before the House and Senate had convened that day. A senator once complained that he had to elbow his way through a crowd of people to get to his desk, and then found someone already sitting there. Although loath to do anything that might offend constituents, senators finally banned visitors, except for journalists. Reporters were permitted on the Senate floor just before a day’s session to get a briefing from the leadership on the day’s schedule (in the House, similar briefings were held in the Speaker’s offices). Known as “dugout chatter” from the term for a baseball pre-game broadcast, this privilege was also suspended, until even staff needed special permission to get access to the floor. The only other way to get there is by election.Donald Ritchie 2010 Congress: A Very Short Introduction
There is a type of transparency project that should raise more questions than it has – in particular, projects…such as the ones (these are the really sexy innovations for the movement) to make it trivially easy to track every possible source of influence on a member of Congress, mapped against every single vote that the member has made. These projects assume that they are seeking an obvious good. No doubt they will have a profound effect. But will the effect of these projects – at least on their own, unqualified or unrestrained by other considerations – really be for the good? Do we really want the world that they righteously envisage? Lawrence Lessig 2009 Against Transparency
How could anyone be against transparency? Its virtues and its utilities seem so crushingly obvious. But I have increasingly come to worry that there is an error at the core of this unquestioned goodness. We are not thinking critically enough about where and when transparency works, and where and when it may lead to confusion, or to worse. And I fear that the inevitable success of this movement – if pursued alone, without any sensitivity to the full complexity of the idea of perfect openness – will inspire not reform, but disgust. The “naked transparency movement,” as I will call it here, is not going to inspire change. It will simply push any faith in our political system over the cliff.Lawrence Lessig 2009 Against Transparency
Transparency has a dark side that, ironically, has everything to do with a lack of mystery, shadow, and nuance. Behind the apparent accessibility of knowledge lies the disappearance of privacy, homogenization, and the collapse of trust. The anxiety to accumulate ever more information does not necessarily produce more knowledge or faith. Technology creates the illusion of total containment and the constant monitoring of information, but what we lack is adequate interpretation of the information.Byung-Chul Han 2015 The Transparency Society
Note: Han’s current work focuses on transparency as a cultural norm created by neoliberal market forces, which he understands as the insatiable drive toward voluntary disclosure bordering on the pornographic. According to Han, the dictates of transparency enforce a totalitarian system of openness at the expense of other social values such as shame, secrecy, and trust.
Part way through the meeting [committee meeting on the 1970 Clean Air Act], minority counsel Tom Jorling left the meeting room to use the restroom. On this occasion, he was followed by one of the technical people from General Motors. While standing next to each other at the urinal, the man confided to Jorling: “We can build whatever you tell us to build. If you tell us to build a clean car, we will build a clean car.” There were other instances where manila envelopes were sent anonymously to the Subcommittee with internal documents that undercut positions industry representatives had made to the Committee. Interactions like these did not do any favors for the auto companies.Brigham Daniels, Andrew P. Follett & Joshua Davis 2020 The Making of the Clean Air Act (Climate)
Note: Even those who worked for the auto industry wanted cleaner air and were willing to take risks (secretly) to let the legislators know. Clearly they were terrified of thier bosses - GM etc.
Open meetings, open rules, and unlimited recorded votes seemed like good ideas when they were proposed, and they were backed by Common Cause and others who sought to reduce the power of special interests. Unfortunately, these reforms were based on a faulty understanding of the mechanisms that allow for citizens’ control. We now know that open meetings filled with lobbyists, and recorded votes, on scores of particularistic amendments, serve to increase the powers of special interests, not to diminish them.Douglas Arnold 1990 (Princeton) The Logic of Congressional Action
Examples abound of congressional action to serve [special interests] when both conditions [of transparency] are satisfied. In 1980 soft drink bottlers obtained an antitrust exception so that they could have exclusive franchises in specific geographic areas, thus eliminating any competition from alternative suppliers of identical soft drinks. They did so by forcing legislators to stand up and be counted on a bill that was highly salient to local bottlers and yet not even potentially salient to consumers. Members of both House and Senate supported the bottlers overwhelmingly (377 to 34, and 89 to 3). In 1982 used car dealers obtained an exemption from regulation by the Federal Trade Commission by forcing roll-call votes in both House and Senate. Most legislators sided with used car dealers, who were both attentive to congressional action and large financial contributors, rather than with used car purchasers, who were unaware of what was happening and who could hardly be roused by an issue with such indirect effects. Both House and Senate supported the auto dealers (286 to 133, and 69 to 22). The story of the 1981 All Savers Certificate shows a similar deference to attentive publics. Once again the issue was very important to savings banks, but not potentially salient to ordinary voters.Douglas Arnold 1990 (Princeton) The Logic of Congressional Action
He says secret meetings are good. "We get lobbied to spend money, always more, never less. And if you bring a newspaperman in there, a fellow would be under terrific pressure." That is, he would be under pressure to abdicate his true function, cutting the budget. (Secrecy of meetings helps both to give the committee prestige, but to assist it in performing its function – cutting.Rep. Prince H. Preston 1959 Fenno - Oral Histories and Interviews (spending, budget, debt)
Regarding secrecy: He thinks only congressmen should be in the hearing room, and not all these lobbyists, "cluttering up the hearing room and coming from every town so that they can say they're a big fellow back home." Regarding Public Works.Rep. Michael J. Kirwan 1959 Fenno - Oral Histories and Interviews (lobbyists)
Without the adroit use of secret and public hearings in the Foreign Relations Committee, there likely would have been no Truman Doctrine.Linda Fowler 2019 Watchdogs on the Hill (oversight)
More: Without the adroit use of secret and public hearings in the Foreign Relations Committee, there likely would have been no Truman Doctrine....Three days of executive sessions brought the secretary of state, the State Department’s aid coordinator, and three high-ranking military officers to Capitol Hill. Their assessment of the situation in the two countries was guarded and critical of the corrupt Greek regime, and it fueled members’ concern about wasting U.S. funds on a losing cause. Going public with this information would have not only killed the bill, but also jeopardized the passage of the European Recovery Act, otherwise known as the Marshall Plan...Despite the active leadership of Republican senators, the administration was able to claim the lion's share of the political credit because so much legislative effort was out of public view.
The reason for the institutional members generating different emotions in the public may in part be found in the institutions themselves. Congress does its work in the open. The public sees almost all of the dirty laundry – both the perceived inefficiency (such as the disagreements, the bickering, the haggling, the obstructions put before the president) and the perceived inequity (such as the alleged influence of special interests, and of selfish concerns on the part of members themselves – scandals, perquisites, and so on). The public feels angry and disgusted at what it sees. The work of the Supreme Court, on the other hand, is done behind closed doors. The media occasionally report on a Supreme Court decision, but even then the public hears only the final summary judgment. What went on in private or even in the courtroom itself remains a mystery to all but a few Americans. This secretive and mysterious process is more likely to generate feelings of uneasiness and fear than anger and disgust. People are not sure what the Supreme Court is doing or what it will do next, but they know what Congress will do next, and they feel angry and disgusted about the whole thing. So the processes of the separate institutions may in fact feed into the emotional reactions people have toward the institutional membershipJohn Hibbing & Elizabeth Theiss-Morse 1995 Congress as Public Enemy
AN ENEMY BECAUSE IT IS PUBLIC On the basis of both our focus-group sessions and the survey responses, we believe an important element of distaste for Congress either has been missed altogether or at least under emphasized by previous investigators. To wit: Congress embodies practically everything Americans dislike about politics. It is large and therefore ponderous; it operates in a presidential system and is therefore independent and powerful; it is open and therefore disputes are played out for all to see; it is based on compromise and therefore reminds people of the disturbing fact that most issues do nor have right answers. Much of what the public dislikes about Congress is endemic to what a legislature is. Its perceived inefficiencies and inequities are there for all to see.
Focus-group participants and survey respondents are disgusted by what they perceive to be undue interest-group influence in Congress. “Why doesn’t Congress represent real people?” participants would ask. Again, part of Congress’s problem is that perceived inequities are played out in public. People frequently see stories of members of Congress being too cozy with special interests, and they find such behavior disgusting. Moreover, when Congress does take action it is seldom fast. Madison believed this was good. He saw the Senate especially as protecting the people from themselves (Madison, 1964) and their oscillating moods and whims. But the public does not like overly deliberate politics. They would like to see something done quickly when in fact legislatures - particularly legislatures like the U.S. Congress - are not well-equipped for rapid action. Viewed in this context, it should be less than a shock that the public does not like Congress. The public prefers some degree of certainty, and when there is not certainty the public wants to believe that disputes take place on the merits of the issues.
Thus, the very openness of the legislative process, which might otherwise be thought to endear Congress to the people, is much more likely to have the opposite effect. Nasty, visible disputes within the executive branch are fairly rare, and interest-group activity there is seldom reported. Occasionally, cabinet rivalries and leaked position papers give the general public a glimpse of maneuverings at the highest policy levels of the presidency, but such instances are infrequent. For the most part, proposals flow from the White House with apparent unanimity from those involved. Dissenters remain quiet or fall in line after the decision is made, in accord with the structure of a hierarchically organized entity. And the Supreme Court, of course, has been artful at camouflaging its disputes. The Court’s “bickering” takes place behind carefully closed doors. Decisions, even when divided, are announced cleanly, and the public remains largely unaware of dissenting opinions. No open disputes, visible partisan stances, or transparent interest-group machinations can be seen. Decisions are presented as final products, not works in progress.
The public, for the most part, does not like the partisan debates, competing interests, and compromises that many close observers of modem democratic politics believe are unavoidable. Congress is the institution in which these distasteful elements of politics are most readily visible. Thus, while Congress is sometimes viewed by the public as an enemy, we wish to call attention to the fact that it is often viewed as an enemy because it is so public. John Hibbing & Elizabeth Thiess-Morse 1995 Congress as Public Enemy
The alternative route for those who seek to increase citizens’ control of government is to reform congressional procedures… so that legislators are responsive to general interests as well as group interests. Although this was the intent of those who reformed procedures in the 1970s, many of the reforms have had the opposite effect. Reformers demanded that all committee meetings must be open, but all this openness has actually allowed narrowly based interest groups to monitor legislators more closely and has thereby made legislators more responsive to group interests. Reformers demanded an end to the closed rule because it was antidemocratic, but most of the amendments proposed without benefit of the rule have been particularistic proposals that serve group interests. Reformers demanded an end to secret, unrecorded votes, but the increased reliance on recorded votes has actually made it easier for narrow groups to hold legislators accountable because most of these votes are on particularistic amendments. Douglas Arnold 1990 The Logic of Congressional Action
Obey, in an interview, blamed much of the push for secrecy on lobbyists. “You have a number of members frustrated because things they have said or done in open markups have been garbled by trade association newsletters and lobby groups,” he said. “Also, you have a feeling that the lobby groups in this country have become so single-minded and so intense that maybe it’s better to operate behind closed doors. You sometimes wonder who is having more influence – the lobbyists or the members.”Rep. David Obey D-Wi 1979 Conference Committees Open Doors (CQ)
Open conferences were an issue as far back as the first session of Congress in 1789. The first conference, on import and tonnage legislation, was held in open session. Non-conferees wandered in and out of the meeting room and the Senate finally had to adjourn for the day because its members, distracted by the conference action, were paying little attention to regular business. The next open conference was not recorded until 1911.CQ Quarterly 1979 Conference Committees Open Doors (CQ)
Transparency has, in recent years, become a mantra for advocates of good government. However, the benefits of transparency vary by context — it should not be seen as a universal ideal. Work in political science and economics suggests that publicizing deliberative processes in legislatures may lead representatives to pander to the public; or may cause potentially beneficial negotiations between countries or legislators to be derailed. Clearly, transparency in certain matters related to national security may have deleterious effects.James Hollyer 2015 What are the consequences of governmental transparency?
The typical American solution to perceived government dysfunction has been to try to expand democratic participation and transparency. Almost all of these reforms failed in their objectives of creating higher levels of accountable government. The reason is that democratic publics are not in fact able by background or temperament to make large numbers of complex public policy choices; what has filled the void are well-organized groups of activists who are unrepresentative of the public as a whole. The obvious solution to this problem would be to roll back some of the would-be democratizing reforms, but no one dares suggest that what the country needs is a bit less participation and transparency.Francis Fukuyama 2014 Political Order and Political Decay
Rolling television coverage of Congress has been linked by many to the decline of deliberation in that body. Rather than debating with colleagues, members of Congress are in fact addressing activist audiences but in the media ether. One former senator I know, who has decried the deterioration of comity in Congress, noted that the most pleasurable moments of his career were spent on the intelligence committee, whose secrecy allowed members to say for once what they honestly believed.Francis Fukuyama 2015 The Limits of Transparency
Sessions were held in complete secrecy, with armed sentinels posted at the doors. Delegates knew that they would generate heated differences, and they did not want to advertise their own dissensions or put the ammunition of harmful arguments into the mouths of the opposition...[Benjamin Franklin] was inclined to be indiscreetly talkative in his declining years. Concerned for the secrecy of their deliberations, the [Framers at the] convention assigned chaperones to accompany Franklin to dinner parties and make sure he held his tongue.David M. Kennedy, Lizabeth Cohen 2018 The American Pageant
For information to be accurate and accessible, transparency requires the kind of regulation that proponents claim it is supposed to replace.Amitai Etzioni 2014 Transparency is Overrated
Transparency provides users with the illusion of openness while actually serving to obfuscate.Amitai Etzioni 2014 Transparency is Overrated
Sometimes the many calls you hear for more transparency in the workings of government may also be wrong… Negotiations cannot be public, as the parties will not be able to talk freely and frankly enough to do the work necessary to reach an integrative solution.Jane Mansbridge 2010 Against Accountability
We compare “open-door” bargaining, in which principals can serve the entire bargaining game as well as its outcome, with “closed-door” gaining, in which they observe only the outcome. We show that agents unambiguously bargain more aggressively with open doors than behind closed doors, which leads to a less efficient bargaining outcome. Their principals therefore prefer to let their agents bargain behind closed doors.John Fingleton & Michael Raith 2005 Career Concerns of Bargainers
The Democrat and other critics are exaggerating, however, when they say it’s “radical’ to negotiate a bill behind closed doors. It has become the norm for a small group of lawmakers and staffers to hash out the details of large, complex pieces of legislation in private, before presenting a final bill to Congress and the public. That’s become particularly true in the age of the 24-hour news cycle that includes dissection of every incremental adjustment or compromise under consideration, and of a political environment that is growing ever more hyper-partisan. Former Republican Senator Trent Lott, who led Senate Republicans through numerous politically charged policy battles, says a lot more can get accomplished in Congress out of the public eye than in it. “When the camera lights go off, the tone of discussion improved markedly,” he recalls of past negotiations.Emily Cadei 2017 Senate Health Care Bill
This summer’s efforts by White House and congressional budget summiteers to force deep cuts in the deficits have largely preempted the jurisdiction of congressional committees, notably the tax-writing panels. Although the members of the House Ways and Means and Senate Finance Committees would probably have a major voice in writing the details of any tax bill that emerges from a summit deal, they have already largely relinquished their authority to make the broad decisions. Their chairmen-Rep. Dan Rostenkowski, D-Ill., and Sen. Lloyd Bentsen, D-Texas have consented to arrangements that allow a wider group of Members to craft tax policy. “All Members see (raising taxes) as a tar baby, and they want to get rid of it,” a close observer said.
The Senate version of the clean air bill was drafted early this year during a monthlong series of meetings convened and masterminded by Senate Majority Leader George J. Mitchell, D-Maine. The meetings were held in Mitchell’s office, with key Senators and Bush Administration officials attending. This extraordinary step was taken after it had become clear that the Senate would never approve the legislation written by the Environment and Public Works Committee because of the opposition of the Administration and powerful private interests. Even in the House, where the bill was handled largely by the Energy and Commerce Committee, most of the major issues were resolved privately by the committee’s leaders, sparing the full committee and the House from the potentially painful task of choosing sides.
The Senate version of a comprehensive anticrime bill, which was approved in July, came to the floor despite the almost total absence of debate or formal action by the Judiciary Committee and with most of the important decisions made off the floor by party leaders. In the House, where the rules give the majority party added leverage, Judiciary Committee Democrats worked with party leaders on their own of the bill, which has been sent to the floor.Richard Cohen 1990 Crumbling Committees (Climate)
Legislative secrecy… has been part of the policymaking process from Congress’s very beginning, and it remains an integral aspect of the lawmaking process. The Framers – who drafted the U.S. Constitution in closed meetings – even included a secrecy provision in that document. Article I, Section 5, states, “Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy.” Moreover, when the first Senators gathered in New York for their first session [in 1789], they seemed to take it for granted that they would meet behind closed doors.Walter Oleszek 2011 Secrecy and Transparency
Transparency theory’s flaws result from a simplistic model of linear communication that assumes that information, once set free from the state that creates it, will produce an informed, engaged public that will hold officials accountable. To the extent that this model fails to describe accurately the state, government information, and the public, as well as the communications process of which they are component parts, it provides a flawed basis for open government laws.Mark Fenster 2006 The Opacity of Transparency
The enormous unintended consequences of disclosure requirements: First and foremost forced disclosure creates a nation that is more susceptible to security breaches and less able to enforce its own laws because evil-doers will have greater access to information that could be used to threaten the health and safety of the public.Mark Fenster 2006 The Opacity of Transparency
Text: The reduced transparency of centralized processes also creates efficiencies. Traditional processes not only make it easier for opponents to obstruct, they can also make it harder for a bill’s proponents to engage in meaningful deliberations. As one staffer put it, “Transparency is a good thing in principle, but it makes Congress more dysfunctional.” Consistent with Warren and Mansbridge, our interview subjects argued that closed-door interactions facilitate negotiation on politically sensitive issues. For negotiators, “private interactions behind dosed doors provide the moments, sheltered from publicity... in which opposition parties can share their perspectives freely and come to understand the perspectives of others”. Doing things in a more secretive manner helps lawmakers find common ground, compromise, and hash out mutually beneficial deals in several ways. Centralized processes allow lawmakers to conduct sensitive negotiations out of the view of lobbyists. Traditional processes – including freewheeling committee meetings and open floor debate and amendment – allow well-financed interest groups to monitor the proceedings and use their clout to influence reelection-minded legislators. As Arnold put it, “Open meetings filled with lobbyists, and recorded votes, on scores of particularistic amendments serve to increase the powers of special interests, not to diminish them.” These efforts can bog down a legislative effort: “I know transparency is good, but it’s very difficult with an issue like health care. There are so many interested parties on the outside. There is so much money involved; 15,000 lobbyists who want to be involved.” Another noted, “Once K Street knows you have a train leaving the station, they have umpteen things they want to get on it.” To make a deal, “you need the back-room discussions outside the view of the lobbyists, even if that’s sacrilege to the open-government people.” Centralized processes also enable Congress to mute pressures from the parties’ activist bases, who can make it difficult for negotiators to agree to any concessions: “The right to petition means these days you have a lot of petitioners who can blow things up.” A zealous party base can spur rank-and-file lawmakers to react negatively to a potential deal, even when objections focus on only a few issues: “Hyperpartisans on both sides will turn everything into a wedge.” When negotiations unfold in public view, issues “get tribalized in the media,” explained a longtime staffer and Hill insider. “If you can keep things out of the view of the public, that’s the best way to actually do something.” While regular order processes may have allowed Congress to resolve conflicts in the past, today openness and transparency are often seen as threats to legislative success: “Regular order is too messy, and it’s covered instantly in the media and it can create problems.”
Checking the ways other people vote is likely to be driven by private concerns, not by a concern for the common good. Vote checking, then, is likely to be performed for the wrong reasons.Bernard Manin 2015 Secrecy and Publicity
Some theorists claim that the secret ballot privatizes the vote. Actually, quite the opposite is true. It is only under public voting that the vote may effectively be employed for private gain. The secret ballot is an obstacle to such practice.Bernard Manin 2015 Secrecy and Publicity
Committees now open their proceedings to the public. Many are televised. All of this allows lobbyists to keep a close eye on events—and to confirm that the politicians to whom they have contributed deliver value. In short, in the name of “reform,” Americans over the past half century have weakened political authority. Instead of yielding more accountability, however, these reforms have yielded more lobbying, more expense, more delay, and more indecision.David Frum 2014 The Transparency Trap
Text: One trend that has accentuated the spending pressure on Congress has been the growth of “sunshine” practices. Starting in the late 1960s, Congress made its committee hearings and many of its committee markup sessions open to the public. The idea was to make the process more “democratic,” but in practice, sunshine measures intensified the access of lobbyists. In an interview, the clerk of a Senate appropriations subcommittee described the impact this way: RESPONDENT: If you wanted to track the growth of the deficit with the opening-up of committee markups to the public, you’d find there’s a direct correlation. It’s very simple: People are against spending in general, but not against it in particular. So the only people that are interested in the appropriations process, in details of the process, are those who want more money. And they are very sophisticated and clever in going about getting that money. And the more you open up the process, the more people are paid to come up here and – increase spending! There’s a whole industry that’s grown up whose basic goal is to increase federal spending.
Since the 1960’s… legislatures, parties and other administrative agencies have sought to make their workings more transparent and responsive to the popular will. Yet the unintended consequence of this “democratization of democracy” is that all these institutions have become prey to the activities of professional lobbyists. Open committee meetings in Congress; primary elections to select delegates to national political conventions; changes to the system of campaign funding; the rise of referendums in state and municipal politics -- together, these well-intentioned innovations have tended to debase the political process.Niall Ferguson 2003 Overdoing Democracy (NYTimes)
MCEVERS: Were people okay with the Senate being a closed body?
ZELIZER: Well, we don’t really have great - we have no popular opinion polls until the 1930s and '40s. And in the period we do have those - the 1950s and '60s, which is really the high point I think of a lot of this secrecy in the middle of the Cold War and when the committees in both the Senate and House were very strong and deliberated on their own - there wasn’t a huge outcry against it. People certainly registered pretty high levels of trust in Congress certainly by the late '60s and early '70s.Julian Zelizer 2017 Congress Has A Rich History Of Legislating In Secrecy
Many of us have a reflexive belief that open political processes are more accountable, but we don’t often ask “accountable to who”? It’s easy to assume that the accountability is to a broader public interest. But in practice, transparency means that focused special interests can keep tabs on each proposal. If the special interests object, they can whip up a storm of protests. They also can threaten attempts at compromise, and push instead toward holding hard lines and party lines. Greater openness means a greater ability to monitor, to pressure, and to punish possible and perceived deviations.Timothy Taylor 2019 When Special Interests Play in the Sunlight
Text: Key to those years -> FOMC members apparently believed that FOMC discussions would never be made public, arguably fostering more candid talk. (Greenspan inaugurated 5-year publication lag of verbatim transcripts under pressure from lawmakers who demanded greater transparency.) Quote from her book: Both inside and outside the FOMC [Federal Open Market Committee], Volcker expressed confidence that a broader political agreement favored tough action in fall 1979. We use the transcripts from FOMC meetings in this period to establish participants' views about the degree of political support for an aggressive program against inflation. Importantly, many members of the FOMC understood that its meetings in this period were tape-recorded. But according to Ellen E. Meade and David Stasavage (2008) and others, most members of the FOMC at this time believed that the tapes were recorded over after they were used to prepare meeting minutes. In other words, “meeting participants did not know that their deliberations would be made public” (Meade and Stasavage 2008, 697). The assumption of privacy helps to account for what appear to be candid views from Volcker and his colleagues about the political implications of their policy choices....We have anecdotal evidence that the threat of transparency can make central bankers more cautious policymakers.
Human experience teaches us that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interest to the detriment of the decision-making process.Justice Waren Burger 1974 Supreme Court
House and Senate committees conducted most of their hearings and all of their meetings in private during the first century of the Republic based on the parliamentary concept that the work of committees was advisory in nature and was not to be discussed elsewhere, especially by the parent chamber, until the committee had filed a formal report. In the early twentieth century, with the construction of new House and Senate office buildings, more space became available for committees to hold public hearings, and many began the practice on a selective basis. But committee meetings to “mark up” or amend pending bills continued to be held in closed, executive sessions.Donald Wolfensberger 2000 Congress and the People
Members of Congress would have to determine whether the advantages of openness outweigh those of secrecy. Lest anyone think that opening formal meetings of any type will place the entire legislative process out in the open, the experience of committees must be reviewed. After committees opened their doors to the public, much of the key decision making occurred in the hallways, in the anterooms, and at pre-meeting meetings. There is a limit to “sunshine” procedures. Certain issues must be discussed in private. The legislative process would grind to a halt if everything had to be done in public. Just as there is a legitimate “private space” in each of our lives, public officials must be allowed to have some private space to develop policy agreements.Stephen Frantzich & John Sullivan 1996 The C-SPAN Revolution
I think TV is the biggest evil that has come to the House. Speaker O’Neill predicted what would happen… We now have four hundred and thirty-five potential stars of daytime television who are acutely aware that there are cameras in the chamber. They use them to get messages out. They plan for sound bites, things that can be quickly snatched by the evening news. It’s created a nastiness and a level of personal attack that was unheard of.Donnald Anderson 1997 Inside Congress
A group of scholars is now scrutinizing reform shibboleths about transparency, campaign finance, and direct democracy, etc. and finding them wanting.Daniel Stid 2015 Two Pathways for Congressional Reform
Increased openness may yield confusing and misleading information. Open meetings, as one agency member generally in favor of sunshine noted, at times can be marked by “disarray, confusion and misunderstanding that can cause the public to pick up the wrong signals.” To the extent that discussion and debate are guarded or colored by political purposes, the actual basis for decision may remain unarticulated. Puzzlement about the future course of policy may be created to the extent that split votes are caused by inflexibility rooted in public exposure or, as another member suggested, by the barriers raised by the act to negotiating unanimity.David M. Welborn, William Lyons & Larry Thomas 1984 Effects of the Federal Government in the Sunshine Act
The greater access enjoyed by journalists [via the sunshine laws] does not necessarily lead to more extensive or better reporting, it was suggested several times. Stories are enlivened by the opportunity to observe meetings directly and by the color this may yield, but substantive content is not always better than in the pre-sunshine period. Knowledgeable reporters, in this view, provided good and accurate coverage before the act.David M. Welborn, William Lyons & Larry Thomas 1984 Effects of the Federal Government in the Sunshine Act
As might be expected, members of attentive publics (special interests and lobbyists) are much more inclined to associate the Sunshine Act with an improvement in the quality of decisions.David M. Welborn, William Lyons & Larry Thomas 1984 Effects of the Federal Government in the Sunshine Act
A huge percentage of time is spent on how to use the political process to create a vote that will embarrass the other side. You basically have people working to make each other look as bad and stupid as possible.Rep Eric Fingerhut Kessler 1997 (Inside Congress)
Disclosure also induces policymakers to distort the process of information gathering and evaluation. In contrast, when no information can be disclosed, the government has no incentive to manipulate information. Secrecy is therefore effective at protecting the integrity of the decision-making process.Patacconi & Vikander 2013 Misuse of Info for Public Debate
Members…at one time did not have to choose between the goals of maximizing reelection prospects and legislating in the national interest, the new transparency and interest group attentiveness to voting records, combined with the rewards of campaign contributions for acceptable conduct, forced that choice more and more often.Donald Wolfensberger 2012 Getting Back to Legislating
So where a chamber of the legislature voted against the considered opinion of the people — as represented by a substantial majority of the citizens’ assembly — that assembly could require the chamber to vote again, this time by secret ballot. Had we had such a system in 2013, Australia would not have stumbled into the disastrous climate change policy it has today and, as I’ve argued, Britain would be navigating its numerous and ongoing Brexit dilemmas more conscientiously. Meanwhile, in the US, the Senate might have structured its verdict on the 45th president as a procedural vote followed by a substantive vote. The first procedural vote would be by open ballot, and would determine by a simple majority whether the substantive vote should be by open or secret ballot.I think a majority would have voted for a secret ballot and, having loosed the vice-like grip of party discipline, would have struck a blow for true accountability rather than its tawdry simulacrum.Nicholas Gruen 2021 Saving democracy: one secret ballot at a time
In some cases, members may request a roll call vote in an effort ot put a political opponent on the record. More often than not, this happens for measures that are politically unpopular for the opposition party. In making these requests (often requests from lobbyists), members are using the electronic voting system to potentially score political points or stop legislation they are opposed to… these measures are often designed to ‘kill’ the underlying piece of legislation if they are adopted.Jacob Straus 2012 The Rise of Roll Call Votes
Probably the most significant amendment relating to the legislative procedure of the House adopted during debate on the 1970 Act (and nearly the only provision of the measure to generate any notable public interest) was the proposal – sponsored by 182 members – to record House members’ names on teller votes, either by House tally clerks or electronic equipment, with publication of the voting in the Congressional Record as has been done with roll-call votes. Under the prior procedure, dating back to early British parliamentary practice, only the total votes on each side of a teller vote, which takes place in the Committee of the Whole House on the State of the Union, were published. Since any amendment defeated while the House sits in Committee of the Whole cannot be the subject of a later record vote when the Committee rises, members could vote anonymously to defeat an amendment they might feel obligated to support if their position were to be made public. Most amendments to legislation adopted in the House are decided by voice, standing, or teller votes, all – until the 1970 act – unrecorded. With recordation of teller votes, the number of members voting and thus participating in the amending process has been increased, and the outcome of the vote occasionally changed. Bruce Hopkins 1972 Congressional Reform: Toward a Modern Congress
One principle surely is that the Government’s case for a measure of secrecy is not altogether frivolous or self‑serving. “The Federalist” is generally worth consulting on these matters; and its authors clearly specified two fields where secrecy seemed to them essential. The first was diplomatic negotiation: “It seldom happens in the negotiation of treaties, of whatever nature, but that perfect secrecy and immediate dispatch are sometimes requisite.” Woodrow Wilson, it is true, later appeared to repudiate this doctrine when he said that “diplomacy shall proceed always frankly and in the public view” and called for “open covenants of peace, openly arrived at.” Before World War I the French Assembly did not know the secret clauses of the Franco‑Russian alliance; nor did the British Foreign Secretary inform even his own Cabinet of the military understandings between the British and French General Staffs. This is what Wilson hoped to abolish.
But, as he himself made clear at Versailles, he really meant by “diplomacy” not the processes but the results of negotiation. In practice he favored plenty of talk out of “the public view” but no concealment of results—i.e., open covenants secretly arrived at. As for the negotiating process, Jules Cambon, who was French Ambassador to Berlin before World War I and whom that acute student of diplomacy Harold Nicolson regarded as perhaps the best professional of the century, was only mildly exaggerating when he wrote, “The day secrecy is abolished, negotiation of any kind will become impossible.” His recent trans‑Atlantic shuttling suggests that Henry Kissinger would agree. Whether blowing the secrecy destroys his capability for future private negotiations is a problem that one hopes Mr. Kissinger has pondered.
A second field noted in “The Federalist” as requiring secrecy was that of intelligence: “There are cases where the most useful intelligence may be obtained, if the persons possessing it can be relieved from apprehensions of discovery.” Contemplation of these two fields led “The Federalist” to conclude: “So often and so essentially have we heretofore suffered from the want of secrecy and dispatch, that the Constitution would have been inexcusably defective, if no attention had been paid to those objects.” In such terms “The Federalist” vindicated the right of the executive branch to conduct negotiations and, by inference, intelligence operations, without any immediate obligation to supply Congress or the people the detail of what it was doing. So from the start the American Government has been into secrecy… You can’t run a Government if every important secret is going to be handed over to the press.Arthur Schesinger Jr. 1972 The Secrecy Dilemma
Note: Despite his comments, Wilson was hardly a fan of transparency. As President he conducted many of his most celebrated actions in secret, using guards at the doors of meetings to insure executive deliberations. Wilson also authored these words which embrace secret deliberations in Congress: “Rather than imprudently expose to the world the differences of opinion threatened or developed among its members, each party hastens to remove disrupting debate from the floor of Congress, where the speakers might too hastily commit themselves to insubordination, to quiet conferences behind closed doors, where frightened scruples may be reassured and every disagreement healed with a salve of compromise or subdued with the whip of political expediency.” Worth noting however that Wilson was one of the most disgusting presidents in history.
Official plans and decisions which, if prematurely disclosed, would lead to speculation in lands or commodities, preemptive buying, private enrichment and higher governmental costs.Arthur Schesinger Jr. 1972 The Secrecy Dilemma
Senator Russel Long argued that “every senator is going to change his pattern of conduct if the Senate is on television” (Congressional Record 15 April 1982, 3582). His prediction was that individual senators, given their ambitious nature and their political goals, would be more attracted than ever to the opportunities for garnering favorable publicity on the Senate floor. “There is no way, in my judgment, and I am positive I am right about his,” he argued, “that we can put the Senate of the United States on live television without greatly increasing the amount of time that Senators are going to spend making speeches here in the U.S. Senate” (Congressional Record 2 Feb. 1982, 279). “Every Senator is a prima donna in one degree or another,” he told the Rules Committee, “and everyone of them is going to be tempted to make himself a speech for the folks back home … And for those who are motivated to take an interest in being President of the United States, hoping lightning might strike them some day [and he estimated 61 such senators] what better opportunity to appear just as often as possible, say something that they think would have some appeal to people across the country” (U.S. Senate 1981, 146). The scenario he saw was one of ever increasing individualism. More political speechmaking (grandstanding), he argued, would diminish the Senate’s capacity to conduct its normal legislative business. “The people don’t send us here to wage a campaign for our reelection or wage a campaign for some other office,” he said. “They elect us here and send us to legislate and pass laws that are in their interest” (U.S. Senate 1981, 76)… Long also predicted more publicity inspired amendments and roll calls ( Congressional Record, 3 Feb. 1982, 345). He further predicted that debate would be less than ever internally focused – senator to senator – and more directed to the outside audience, thus trivializing and atomizing deliberations. Richard Fenno 1989 The Senate through the Looking Glass - The Debate over Television
Trevor: Do you think maybe the court should jump into the era of tv and broadcast what you’re doing? Sonia Sotomayor: No. You walk into our courtrooms and we’re not made for tv, and I think if our arguments were televised, it might change the dynamic, and we’re human beings and the draw to play to tv affects every human being. Trevor: Now that you’ve said that, I feel like no part of the u.s. government should be on TV. Sonia Sotomayor: Actually, that’s what some senator said to me, that the partisanship in the senate started the senate room. those senate rooms now are completely empty. It’s the chair of the senate, it is the senator speaking and some members of his staff. there is no one else in the room but the camera, and they’re speaking to the camera, not to each other. But many senators told me that they felt that much of the collegiality died when they stopped getting together in that room and were forced to listen to each other and were forced to sit next to each other and talk to each other. So I think you said a joke, but some might think it might be a good idea to return to those days.Sonia Sotomayor 2019 (Supreme Court Justice) The Trevor Noah Show
Everything that is special about the Senate, said Senator Russell Long, “is foreign to the idea of putting the matter on television, which would tend to make the Senate easier to stampede and make the difficult job of statesmanship, that type of statesmanship which requires enormous courage on the part of a senator, a great deal more difficult” (Congressional Record 15 Apr. 1982, 3582). In Long’s view, the scheme to pack the Supreme Court would not have been stopped and the Panama Canal Treaty would not have been ratified in the presence of television (Congressional Record 2 Feb. 1982, 280). Nor would Long have been as likely to have defended fellow Senator Thomas Dodd, nor would Daniel Inouye have been as likely to have defended Senator Harrison Williams, he speculated. “You need a Senate of the type we have known,” he told his colleagues, “where statesmanship can prevail, and you should not be doing things that are going to make it more difficult for statesmanship to prevail in this body” (Congressional Record 15 Apr. 1982, 3582). That is exactly what he believed television would do.Richard Fenno 1989 The Senate through the Looking Glass - The Debate over Television
In 2006, the new Democratic majority in the U.S. Congress, having campaigned against “earmarks” (targeted expenditures),began to publish which lawmakers had voted for and obtained them. Here transparency, not secrecy, yielded perverse results: earmarks increased, in part because legislators saw what other legislators were getting and demanded more, in part because interest groups could more easily monitor whether legislators were delivering the goods.Adrian Vermeule 2010 (Harvard Law) Open-Secret Voting
In the Italian Parliament of the 1970s and 1980s, the practice was that bills designated as issues of confidence by the government would be voted upon first by open ballot, then by secret ballot. The results frequently differed. In 1986, Bettino Craxi’s government (widely regarded as one of the most corrupt and intimidating in history) won the open vote of confidence by a margin greater than 100, only to be defeated on the secret ballot. Craxi was forced to resign...Successive votes by the same body under different transparency regimes sometimes reach strikingly different outcomes.Adrian Vermeule 2010 (Harvard Law) Open-Secret Voting (ITALY)
Lindsey Graham was pissed. The whole thing was “crap,” “a charade” and “despicable,” the South Carolina Republican said. By the fifth day of Senate hearings for Supreme Court nominee Brett Kavanaugh, Graham was done with Democrats harping on what he considered to be a slanderous sexual assault allegation. “This is the most unethical sham since I’ve been in politics,” Graham said, pointing a finger across the dais of the Judiciary Committee. The clip went viral. Fox News ate it up. And for Graham, the soundbites paid off handsomely. During the next month, his campaign received $319,000 in large donations (more than $200) – or five times what he raised the previous month. More than 80 percent of the money came from people outside Graham’s home state. For the senator, who’s seeking a fourth term next year, the takeaway is clear: Full-throated histrionics, when broadcast live for millions and replayed for days on cable news, can turn into easy money. But for those focused on how Congress is stymied by partisanship and consumed by fundraising, the moment delivered this counterintuitive message: While putting Congress on TV has brought transparency to the legislative process, it has also created a prime venue for the sort of grandstanding that galvanizes a political base, divides a country and raises a whole lot of money.Geoff West 2019 Cameras as Cash Machines
Open voting can induce posturing, political correctness, or, what is equally bad, bending over backwards to signal that the voter is not politically correct; it also makes possible credible commitments to corrupt bargains with other voters or third parties (special interests or other members of Congress).Adrian Vermeule 2010 (Harvard Law) Open-Secret Voting
The ways in which positions can be registered are numerous and often imaginative. There are floor addresses ranging from weighty orations to mass-produced “nationality day statements.” There are speeches before home groups, television appearances, letters, newsletters, press releases, ghostwritten books, Playboy articles, even interviews with political scientists. On occasion congressmen generate what amount to petitions; whether or not to sign the 1956 Southern Manifesto defying school desegregation rulings was an important decision for southern members. Outside the roll call process the congressman is usually able to tailor his positions to suit his audiences. A solid consensus in the constituency calls for ringing declarations… Division or uncertainty in the constituency calls for waffling; in the late 1960s a congressman had to be a poor politician indeed not to be able to come up with an inoffensive statement on Vietnam (“We must have peace with honor at the earliest possible moment consistent with the national interest”). On a controversial issue a Capitol Hill office normally prepares two form letters to send out to constituent letter writers – one for the pros and one (not directly contradictory) for the antis.
Yet it is on roll calls that the crunch comes; there is no way for a member to avoid making a record on hundreds of issues, some of which are controversial in the home constituencies. Of course, most roll call positions considered in isolation are not likely to cause much of a ripple at home. But broad voting patterns can and do; member “ratings” calculated by the Americans for Democratic Action, Americans for Constitutional Action, and other outfits are used as guidelines in the deploying of electoral resources. David Mayhew 1974 The Electoral Connection
Committee meetings are held behind closed doors, which means that neither the public nor the media can attend. This allows members to discuss sensitive political issues without outside listeners. The idea is that this should provide better opportunities for reaching agreements and compromise solutions between the parties.Sveriges Riksdag 2020 Official Swedish parliament website
“The free debate in the Senate will have to go if the television comes in.” “Television will kill it,” Senator Russell Long argued, “for the simple reason that television will make such a complete demand for unnecessary speeches for the benefit of the constituency back home that you won’t have free debate any more”. The sheer increase in speech making would necessitate a whole new set of rules “to accommodate it,” including “a closed rule… similar to that in the House,” he prophesied.Richard Fenno 1989 The Senate through the Looking Glass - The Debate over Television
While our empirical results seem unexpected, they are generally consistent with predictions of recent and elaborated models (Fox 2007; Prat 2005) which highlight the potential negative impacts of transparency of individual votes on the quality of political representation.David Stadelmann, Marco Portmann and Reiner Eichenberger 2014 Transparency Does Not Increase the Quality of Political Representation
The congressional sunshine initiative became a tool for the very special interests whose power the reforms were supposed to dilute. Corporations and lobbying groups have seized on the open hearings to help them hold legislators accountable as never before.Martha Hamilton 1984 – The Washington Post Opening Up Congress
During the closed House Ways and Means Committee mark-up, the action was brisk and lobbyists and the press were kept outside, littering the halls of the Longworth House office building with candy wrappers and cigarette butts. On the (open) Senate side, mark-up sessions were long and sometimes chaotic. The drafting took weeks. Everything was subject to change, with lobbyists reversing key votes. What took weeks on the (open) Senate side took two days in (closed) Ways and Means. And what took the better part of a week on the Senate floor and ended at dawn after a punishing 19-hour session, took just hours on the House floor. Hamilton 1984 – The Washington Post Opening Up Congress
That transparency checks corruption is an article of faith among reformers, but its benefits are elusive. This paper offers five core arguments: First, most transparency policies miss much of what many citizens regard as corrupt. Second, even for the sorts of corruption directly targeted by transparency reforms, effects will often be minimal. Third, transparency can actually make corruption worse. Fourth, transparency can help powerful interests protect their advantages while weakening countervailing forces. Fifth, for transparency to check corruption, the data it reveals must be used in organized and sustained ways. While transparency will always have a place as an aspect of good governance, when it comes to corruption the alternatives may be counterintuitive – for example, “blinding” some processes that are now publicly disclosed. Understanding these problems is essential if we are to improve on the indifferent results of reform and address the political malaise afflicting many liberal democracies.Michael Johnston 2018 (draft) The Sunlight Paradox
The deliberation and the decisions have to happen someplace. And in the 1970s when the conference committees would rule between the House and the Senate they have to take a bill and make it identical, they use to be private. They became public under a law in the 1970s and then more people wanted to be on these committees and the cameras were there, the press was there. So, they ended up having to make decisions, where? During the bathroom breaks. And the decisions were made in the Senators only bathrooms. And they would just huddle in there…so all this distortion happens. Increasingly what we see, on TV, is just for public consumption. Because everybody’s watching, so they just grandstand. You don’t get the same kind of deliberation…I also resonate with the idea that trust is central to it all.David King 2014 Tensions in Transparency (Harvard talk)
On their face, these sunshine reforms of the 1970s—open procedures, campaign finance regulations, and ethics codes—and their periodic fine-tuning since then, were designed to make it possible, although not necessarily easy, for the public to assess the degree to which members of Congress pursue their own interests at the expense of the public’s. But in adopting even such praiseworthy reforms as increasing congressional visibility, and thus accountability, the lawmakers may have had less readily defensible intentions. Although little noted in the press or by the public, there were clear implications for the political parties in the requirement that Congress perform in public. The more visible any action, the more that competing pressures – from the president, interest groups, and the public generally – come into play; the greater the extent and intensity of such pressures, the less likely members will be to defer to party leaders and support party line.Larry Rieselbach 1994 Congressional Reform
Too much transparency can and has undercut the possibility of deliberation, as in the U.S. Congress. If demands for accountability become just another weapon in partisan political combat, they will not achieve their purpose. Formal systems that minutely measure performance and punish poor performance often produce what the political scientist Jane Mansbridge labels “sanction-based accountability,” a modern version of Taylorism that is based more on fear than loyalty. Such systems are premised on the idea that workers cannot be trusted to do their jobs in the absence of careful external monitoring; they are surefire ways of killing risk taking and innovation on the part of those being evaluated. Because these procedures, designed to increase accountability and therefore legitimacy, have the ultimate impact of making the government less effective, they paradoxically undercut its legitimacy.Francis Fukuyama 2014 Political Order and Political Decay
At a Rose Garden ceremony on May 19, 2009, President Obama announced an “historic agreement” between automakers, the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), the State of California, and the Obama Administration to set fuel economy/ GHG standards through 2016, hereinafter referred to as the “historic agreement.” Unfortunately, this agreement is quite literally the product of secret, closed door negotiations, led by Assistant to the President for Energy and Climate Change, also known as the Energy and Environment Czar, Carol Browner. According to the New York Times, Ms. Browner imposed a “vow of silence” over the negotiations on vehicle fuel economy [standards]. California Air Resources Board Chairman Mary Nichols even bragged that “We put nothing in writing, ever.” Due to this unusual imposition of secrecy, any conversations between individuals in the automobile industry and members of the Administration, which led or contributed in any way to the historic agreement, shall be hereinafter referred to as the “secret negotiations.”Representative Darrell E. Issa & Lamar Smith 2010 Request for Information on Secret Negotiations (Climate)
With committee proceedings and voting matters of public record, lawmakers can no longer hide behind closed doors and unrecorded votes; they must take care to protect their political futures. The presence of lobbyists and administrative officials at public sessions – where they can monitor members’ behavior, offer texts of amendments, and notify their employers when and where to apply pressure – may make it more difficult for committees to act decisively. Increasingly, they have resorted to “executive” or “informal” sessions, held prior to official meetings, where members can talk freely and develop compromises without the intrusive presence of outsiders. Larry Rieselbach 1994 Encyclopedia of Policy Studies
However, other data — especially evidence assembled by behavioral economists — strongly indicate that people are neither as able to process information nor as likely to act on it as transparency theory presumes. Hence, in situations in which adverse outcomes have a relatively high disutility (e.g., there is a high probability that they will cause death, serious bodily damage, or loss of one’s home or life’s savings) or the information is complex (e.g., medical information), drawing on other sources of regulation in addition to transparency seems called for. Administrative reform cannot, however, deliver on transparency’s metaphoric promise. The state’s large, organizationally and physically dispersed public bureaucracies perform a variety of functions and make a staggering number of decisions of varying importance, not all of which can be viewed before the fact or even easily reviewed later. The state is too big, too remote, and too enclosed to be completely visible. The very nature of the state, in other words, creates the conditions of its obscurity. It can never be fully transparent, at least not in the sense that the term and its populist suspicions of the state require. Overinvestment in transparency as a metaphor leads open government advocates to lament insufficiently effective administrative laws, while the debate over how best to make the government open too often focuses on how to make the state permanently and entirely visible rather than on devising means to improve public oversight and education. Amitai Etzioni 2010 Is Transparency the Best Disinfectant?
For Henry Kissinger, the quiet resolution of the Cienfuegos crisis and subsequent visits by Soviet submarines to Cuba, testing the Nixon administration’s resolve, showed how successful the back channel could be: “All this, it must be remembered, was handled almost entirely by private diplomacy. The process was essentially a series of messages in the presidential Channel, backstopped by interagency coordination in the WSAG. Rather than a dramatic confrontation on the order of 1962, we considered that quiet diplomacy was best suited to giving the USSR an opportunity to withdraw without humiliation.”Richard A. Moss 2017 Nixon’s Back Channel to Moscow
It was in the Rules, Discipline and Privileges Committee that I was again [in Uganda in 2005] confronted with the issue of amending the constitution to remove the presidential term limits. Originally, according to the rules, voting on the removal of the term limits was supposed to be by secret ballot. However, the government quickly moved to seek an amendment of the rules of procedures so as to make voting on this issue open, whereby each individual member would be required to verbally and openly declare YES or NO to the lifting of the term limits. My suspicion was that this change of procedure was sought that members who had been bribed to support the constitutional amendment would be intimidated and publicly vote in favour of the motion. As a member on that Rules Committee, I vehemently opposed the amendment of this rule of procedure.Miria Matembe 2019 The Struggle For Freedom & Democracy Betrayed (Uganda)
President Museveni has shed off all pretense of niceties and its now brute force at work. At the height of the removal of age limit debate dubbed Togikwatako, the opposition MPs put up a spirited fight in parliament to defend the sanctity of the constitution. The regime was not having any of it and on 27th September, 2017 a gang (believed to be members of the elite presidential guard) invaded the house and beat up MPs leaving some of them hospitalised and others like Hon Betty Nambooze with permanent disabilities. Unfortunately, Museveni eventually got his way and the age limit was scrapped by Parliament.Miria Matembe 2019 Struggle For Freedom & Democracy Betrayed
Note: During a Parliamentary discussion over the age-limit clause of the President of Uganda, one that if maintained would remove the aging President Museveni from power, bullies entered Parliament and began to beat the members. The opposition groups in Parliament, seeking to maintain the age-limit, were also seeking to have a secret ballot parliamentary vote on the question. President Museveni did everything in his power to prevent that. He suceeded, the vote was open, and he (and his armed gangs) won by over 90% of the vote. Yet most agree that if the vote had been secret he would have lost. Matembe continues “[President Musevini] pitched camp in the Parliament’s chamber to personally see to it that the MPs voted as instructed.”
Legislative confidentiality (secrecy) may facilitate negotiation and deal making, foster staff independence and forthrightness, protect government employees from harassment, and enable representatives to be creative and vigorous leaders.Steven F. Huefner 2003 The Neglected Value of the Legislative Privilege in State Legislatures
Legislative openness may operate adversely... [It may] prompt legislators to say what they believe the public or a key constituency wants to hear, and even to commit themselves to an ultimately inferior policy position, rather than allowing them carefully to develop a superior course of action and then go about marketing it to colleagues and constituents.Steven F. Huefner 2003 The Neglected Value of the Legislative Privilege in State Legislatures
Government incentives and intimidation extended beyond [President] Museveni’s interaction with individual MPs or political elites. The ruling party [in Uganda] also changed the process of amending the constitution to increase pressure on those MPs who might have remained uncertain about their vote. In an exercise of selective transparency, the NRM declared that the Parliamentary vote on third term would be changed from a secret ballot to prevent dissenters’ identities to a public roll call vote in which all those opposing the measure would be publicly known. The confluence of financial incentives, the threat of incarceration or dismissal, and the inability to dissent under the radar were short-term methods to marginalize the opposition.Ben Armstrong 2011 Ne Touche Pas Ma Constitution: Pressures and Presidential Term Limits
Note: During a Parliamentary discussion over the age-limit clause of the President, one that if maintained would remove the aging President Museveni from power, bullies entered Parliament and began to beat the members. The opposition groups in Parliament, seeking to maintain the age-limit, were also seeking to have a secret ballot parliamentary vote on the question. President Museveni did everything in his power to prevent that. He suceeded, the vote was open, and he (and his armed gangs) won by over 90% of the vote. Yet most agree that if the vote had been secret he would have lost. Miria Matembe writes “[President Musevini of Uganda] pitched camp in the Parliament’s chamber to personally see to it that the MPs voted as instructed.”
Then came the 2006 debate [on Presidential term limits in Nigeria]. To illustrate the gravity of the issue to him, [President] Obasanjo reportedly offered MPs $400,000 each for their support of term limits repeal. The bribes complemented threats that those who opposed the third term would be investigated. Notwithstanding these pressures and temptations, Nigerian MPs rejected the third term bid. Lewis claims that Parliament became a venue for those who opposed Obasanjo and had political ambitions of their own to prevent the president from clinging to power. From this perspective, it does not seem as if the opposition was about constitutionalism as much as it was about the elite pact that promised the rotation of power. However, Lewis also notes the independent stand that the President of the Senate – a neutral figure and member of the ruling party – took to secure a fair debate in Parliament, even though Obasanjo’s allies sought to rig the vote. One of the key differences was that Nigeria’s third term vote was on a secret ballot; this is in sharp contrast to the public Ugandan vote where presidential pressure on MPs was more effective. Thus, while the Nigerian case does not offer a model of pressure from Parliament as an institution, it does show how an Assembly allowed to obtain some independence can help organize opponents and allow them to challenge presidentialism. This is a clear departure from the Ugandan and Namibian experiences.Ben Armstrong 2011 Ne Touche Pas Ma Constitution: Pressures and Presidential Term Limits
Note: In Uganda, President Museveni fought and won a public vote over presidential term limits and won by a landslide. In Nigeria, even despite some of the most lavish bribe offers in history, combined with threats amounting to jail time, President Obasanjo lost - but in this case, the vote in the Nigerian Parliament was conducted by secret ballot.
After a decade of delay, the Clean Air Act Amendments passed by overwhelming majorities in both chambers, making manifest both the power of well-placed opponents to maintain the status quo against a popular alternative and the importance of legislative leaders in facilitating a successful policy challenge… Congressional leaders, particularly Mitchell and Dingell, brokered deals that were crucial to building a majority coalition. Their willingness to hold meetings behind closed doors, away from the scrutiny of lobbyists, was particularly crucial.Judith A. Layzer & Sara R. Rinfret 2023 The Environmental Case (Climate)
Since it requires only 20 members to force the new procedure of “tellers with clerk,” votes on all important amendments will henceforth be recorded. This means that the folks back home will always know how their representatives have voted not just on bills as finally amended, but on amendments, which often tell the story of a congressman’s record more accurately. So Members of the House must now be “more responsive to the popular will” than they have been in the past. They cannot hide as they once could in the underbrush of defensive rules. The House will thus be “a more democratic body.” These combinations of words are almost as mellifluous as “liberal reform.” All this is presumed to be as good as it sounds. But is it? Not necessarily: Not unless the voters to whom representatives are responsible are well enough informed to make wise choices. Not If representatives are always prevented from relying on their own judgment. Not if the consequences are government by opinion poll. Not if only the accomplished demagogue can hope to win a place in the House and keep it.Kenneth G. Crawford 1971 Is “Liberal Reform” All to the Good?
[The rules of secrecy sheltered] members from the hot-and-cold blowing winds of popular pressures. The founding fathers themselves were similarly sheltered. James Madison is authority for the conclusion that the Constitution could never have been written had its authors’ deliberations been public. In the more recent past it is doubtful whether civil rights legislation now on the books could have passed the House had votes on amendments been public. The majorities necessary to pass amendments were sometimes contrived only because cooperative opponents were persuaded to make themselves scarce when teller votes were taken.Kenneth G. Crawford 1971 Is “Liberal Reform” All to the Good?
Reform of House rules, much as some change was needed, universal as the demand for it was, will not be an unmixed blessing. The reformers, in their zeal to make the House more responsive to the public may only have made it less responsive to the real needs of the time. These needs are emergent. Some of them will not wait until the public opinion pollsters discover what 51 per cent of the people want so that 51 per cent of the national legislators can act. Liberal reform, like sugar and spice, may taste good in the eating but produce stomach aches in the digesting.Kenneth G. Crawford 1971 Is “Liberal Reform” All to the Good?
Democracies end when they are too democratic...Over the centuries, however, many of these undemocratic rules have been weakened or abolished. The franchise has been extended far beyond propertied white men. The presidency is now effectively elected through popular vote, with the Electoral College almost always reflecting the national democratic will. And these formal democratic advances were accompanied by informal ones, as the culture of democracy slowly took deeper root. For a very long time, only the elites of the political parties came to select their candidates at their quadrennial conventions, with the vote largely restricted to party officials from the various states (and often decided in, yes, smoke-filled rooms in large hotel suites). Beginning in the early 1900s, however, the parties began experimenting with primaries, and after the chaos of the 1968 Democratic convention, today’s far more democratic system became the norm.Andrew Sullivan 2016 America Has Never Been So Ripe for Tyranny
Most Americans consider détente – the reduction of tensions between the United States and the Soviet Union – to be among the Nixon administration’s most significant foreign policy successes. The diplomatic back channel that national security advisor Henry Kissinger established with Soviet ambassador Anatoly Dobrynin became the most important method of achieving this thaw in the Cold War. Kissinger praised back channels for preventing leaks, streamlining communications, and circumventing what he perceived to be the US State Department’s unresponsive and self-interested bureaucracy. Nixon and Kissinger’s methods, however, were widely criticized by State Department officials left out of the loop and by an American press and public weary of executive branch prevarication and secrecy.Richard A. Moss 2017 Nixon’s Back Channel to Moscow
These lessons remain important as back-channel diplomacy persists today. For example, recent back channels probably have played a role in brokering the agreement to curb Iran’s nuclear program in exchange for the relief of international sanctions, and also in the reestablished diplomatic relations between the United States and Cuba. President Barack Obama’s back-channel diplomacy has had effects on today’s U.S. foreign policy machinery similar to those that resulted from the back-channel diplomacy of the Nixon era. The opening to Cuba echoes Nixon’s opening to China with the surprise it generated inside the Beltway, among foreign-policy watchers, the government bureaucracy, and the military, which has viewed Havana as a potential adversary for more than five decades.Admiral James Stavridis 2017 Nixon’s Back Channel to Moscow
In some cases, particularly when sharply conflicting interests must be accommodated, freedom from the pressure of public opinion may be desirable. Moreover, public scrutiny of the government’s decision-making process might have an adverse effect on government decisionmakers. Officials might be reluctant to request information lest they create a public image of ignorance.Justice Department Spokesman 1978 George Kennedy Advocates of Openness
Gingrich in 1997, like Speaker Boehner in 2011, worked secretly with a Democratic president to get a major but surprising compromise on important policy challenges – social security and Medicare reform in the case of Gingrich and Clinton, taxes, spending, and debt limit in the case Boehner and Obama. In both cases, secrecy was required because, once disclosed, House Republicans would object to serious negotiations and rally conservatives everywhere against any compromises with a Democratic president. Only final deal, backed by both Republican speaker and Democratic president, had any chance of success.Steven S. Smith 2021 Gingrich and the Polarization of Congressional Parties
In a classic discussion of international negotiation Fred Iklé observed that “secrecy has two major effect s in diplomacy. Firstly, it keeps domestic groups ignorant of the process of negotiation, thereby preventing them from exerting pressures during successive phases of bargaining . Second, it leaves third parties in the dark and thus reduces their influence” (Iklé, 1964, p. 134).
Implicit in this is that lack of secrecy allows domestic groups to exert pressure and allows third parties to increase their influence. Iklé’s insight can be profitably placed in a broader theoretical context.
In analysing the workings of the American political system, E.E. Schattschneider argues that political conflict can be thought of as a fight: “Every fight consists of two parts: (1) the few individuals who are actively engaged at the centre and (2) the audience that is irresistibly attracted to the scene … the outcome of every conflict is determined by the extent that the audience becomes involved in it.”
Hence, “if a fight starts, watch the crowd [since] the outcome of all conflict is determined by the scope of its contagion. The number of people involved in any conflict determines what happens; every increase or reduction in the number of participants, affects the result.” The consequence is that “the most important strategy of politics is concerned with the scope of the conflict… So great is the change in the nature of any conflict likely to be as a consequence of the widening involvement of people in it that the original participants are apt to lose control of the conflict altogether” (Schattschneider, 1960, pp. 2-3 ).
Conflicts which are liable to spread have a dynamic of their own, with the original parties un able to control the outcome (Schattschneider, 1960, pp. 2-3). As more people become aware that a decision is to be taken or a ‘fight’ is in progress, more people have the opportunity to seek to exert influence or to join the conflict. Such a process will not be neutral: the make-up of the audience will determine who benefits from such a process of expansion.
Iklé’s advocacy of secrecy can be seen as a particular form of the control of scope. Limiting the range of parties both simplifies negotiation and excludes particular groups . Defining the scope of a negotiation and managing the reaction of those not at the table is a part of any negotiation. The problem is that the result of the information explosion is a ‘Schattschneider effect’: in a shrinking world it becomes increasingly difficult to maintain the secrecy that Iklé recommends. Negotiations will increasingly be carried out in the glare of publicity, so that it becomes easier for domestic political groups or third parties to exert pressure on the negotiators, who in turn must work harder to deal with the third dimension . Robin Brown 2012 Negotiation in Three Dimensions
Congress’s deliberations are more accessible and transparent to the public than those of perhaps any other kind of organization.Walter Oleszek 2014 Congressional Procedures and the Policy Process
Until the mid-1970s, conference committees almost always met in secret sessions with no published record of their proceedings. The conference committee reports they produced revealed the results of the secret negotiations but the bargaining and deliberations that led to these results were not formally disclosed… The conference committee is one of the most critical points in the legislative process.Walter Oleszek 2014 Congressional Procedures and the Policy Process
During the Cuban Missile Crisis, President Kennedy went on TV and publicly confronted Chairman Khrushchev with military threats and a blockade. Eight years later, when the United States discovered that the Soviet Union was constructing a submarine base in Cuba, Henry Kissinger and President Nixon settled the Cienfuegos Submarine Base Crisis through diplomacy that was almost entirely private. Kissinger (1979,651) later wrote, “Rather than a dramatic confrontation on the order of 1962, we considered that quiet diplomacy was best suited to giving the USSR an opportunity to withdraw without humiliation.” This incident could have escalated to a second Cuban crisis, but secret diplomacy successfully persuaded the Soviet Union to concede without raising the risk of war.Shuhei Kurizaki 2007 Efficient Secrecy
Secrecy is necessary to enable governments which have taken extreme positions in public to compromise in private, and to be protected against the consequences of disclosure until the terms of agreement are final and can be defended successfully against domestic critics. Charles W. Freeman Jr. 1993 Ambassador of the United States to Saudi Arabia
Both Republicans and Democrats probably agree that you cannot run a government if every internal memorandum is promptly handed to the press. Arthur Schlesinger 1972 The Secrecy Dilemma
Secrecy allows a diplomat to rationally make a private concession, which is not attainable in public diplomacy. Historical norms are that state leaders employ secrecy as face-saving tactics in order to facilitate co-operative outcomes and tension reduction. For example, during the final phase of the Cuban Missile Crisis, President Kennedy wanted to make sure that “Every opportunity was to be given to the Russians to find a peaceful settlement which would not diminish their national security or be a political humiliation” (Kennedy 1969, 81). Contrary to the popular perception that transparency or “open diplomacy” carries beneficial effects in the age of democracy (Finel and Lord 1999; Nicolson 1963), efficient secrecy posits that the private equilibrium is a more valuable mechanism for almost any type of players, as it can lead to better bargaining outcomes than the public equilibrium can. Moreover, inefficient bargaining failures due to players’ incentives to “go public” and signal to an outside audience are ubiquitous not only in international disputes (Kydd 2006) but also in labor bargaining (Cai 2000) as well as legislative politics (Groseclose and McCarty 2001).Shuhei Kurizaki 2007 Efficient Secrecy
It is probably not sufficiently realized that although secrecy in government is generally considered inimical to democracy, its positive importance was recognized very early in the history of this country. In his address to the Constitutional Convention (held in secret) James Wilson noted as one of the main disadvantages of democracy that it promoted the “disclosure of publick counsels.” He referred also to Tacitus as the “profound politician Tacitus.” The meaning here is fairly clear. Tacitus helped inspire an extensive literature in the seventeenth century devoted to reason of state or the concept of public necessity. It is reasonable to suppose that Paine’s dictum “nations can have no secrets; and the secrets of courts, like those of individuals are always their defects” did not find a universal response at the Convention. If we follow Henry Adams and his discussion of the acquisition of Louisiana during Jefferson’s administration, it is clear that Jefferson, although fairly close to Paine ideologically, momentarily set aside his constitutional scruples in order to acquire this immense territory for the United States. He had previously believed that the only method of acquisition consistent with democratic principles was by means of constitutional amendment; but the pluralism at work during that period would have set in motion strong regional forces which had the power to defeat an amendment. In letters to Paine as well as to other close friends Jefferson advised them that he intended to depart from his well known views and proceed sub silentio. He enjoined secrecy on their part. Acquisition was completed without an amendment. Jefferson had acted for posterity.Stanley T. Gabis 1962 The Dilemma of the Goldfish Bowl Advocates of Openness
Note: This is from a book review of Secrecy and Publicity: Dilemmas of Democracy, by Francis E. Rourke. Johns Hopkins Press, 1961.
Secrecy is unavoidable but, if improperly used, can devitalize public opinion and public participation. Likewise, extensive publicity is necessary to carry on modern governmental functions but it too can be twisted into an instrument of great power to mislead, aggrandize, and destroy.Stanley T. Gabis 1962 The Dilemma of the Goldfish Bowl
Note: This is from a book review of Secrecy and Publicity: Dilemmas of Democracy, by Francis E. Rourke. Johns Hopkins Press, 1961.
What emerges from this study is a theoretical rationale for secret diplomacy. Existing studies commonly suggest that quiet diplomacy is ineffective and secondary to military might in crisis. This is puzzling when one considers the fact that secrecy has been a central feature of diplomatic institutions ever since the establishment of diplomacy in the seventeenth century or perhaps earlier (Nicolson 1954, 75). The model shows that an extension of the conventional audience costs story helps explain why secrecy can be rational.Shuhei Kurizaki 2007 Efficient Secrecy
First came plain old diplomacy, from the Greek word for a letter that has been folded over so that its contents cannot be readily seen. Not until 1973 did the word diplomacy find a new [secretive] mate, and the matchmaker was Henry A. Kissinger, who let it be known he preferred quiet diplomacy, a formulation that diplomats liked because it seemed to describe action and promised results from behind-the-scenes maneuvering. And yet, access, the insider’s noun, is formed from the verb accede, based on the Latin cedere , “to yield.” That’s what the government official is supposed to be doing, and it is the ability to induce such sweet surrender that the sellers of access are selling.William Safire 1985 On Language: Public Diplomacy
Mediators may wish to make use of opportunities for informal exchange as a way of getting things unstuck. If the formal process of offer and counteroffer, as it takes place at the negotiating table, is being used to state extreme positions in public, and the disputants have reached an impasse, it may be wise to create opportunities for more informal arrangements. UNEP Executive Director, Mustafa K. Tolba, appears to have done just this during the Montreal Protocol negotiations on the depletion of the ozone layer. Tolba made extensive use of “informal consultations” designed to help narrow the gap between the divergent views of negotiators on central issues, and accomplished this away from the plenary session. (Climate and Environment)Gunnar Sjostedt 1992 International Environmental Negotiation: Insights for Practice
Without reporters or lobbyists in the room, senators are free to debate difficult decisions and make deals without the pressures to posture or conform to narrow ideological or parochial views.Colleen Shogan 2012 (Jacob Straus) Party and Procedure
Four reasons explaining the National Defense Authorization’s repeated successes were mentioned repeatedly throughout the staff interviews: bipartisanship, routine committee processes, staff interactions, and closed markups.Colleen Shogan 2011 The Senate’s Last Best Hope
By far the most significant anti-secrecy provision in the 1970 act dealt with disclosure of House members’ votes in Committee of the Whole. The House often makes its most important policy decisions in that committee, but for 180 years its precedents had forbidden the recording of names in these votes. Under the new rule, each member’s name and vote was to be recorded upon the demand of 20 or more members.Walter Kravitz 1990 Legislative Reorganization Act of 1970
It is somewhat surprising that “transparency”, one of modernity’s most conspicuous current tropes, has received so little sustained analytic attention. All the more so when we notice that, in the real world, modernity and transparency rarely march hand in hand… To provide but one example, the IMF, in the interests of promoting democracy, has continually insisted on radical economic restructuring across the globe, calling for the decentralisation and privatisation of staterun enterprises. In persistently asking probing questions about who controls what economic resources, to what ends and for whose benefit, developers aim to make visible an underlying market-run rationality, to make “transparent” the everyday workings of local and global economies.Todd Sanders 2003 Invisible Hands and Visible Goods
If the United States is to correct the harm caused by the recent secrecy culture, advocates who favor greater government openness must acknowledge that there are legitimate secrets. Transparency proponents must better understand the rationales for legitimate secrets.Frederick Schwarz 2015 Democracy in the Dark
Transparency is one of the buzzwords of the 21st century (at least in political economy). Whether we are talking about good governance at home or exporting democratic ideals abroad, the new conventional wisdom is “the more transparency, the better.” I argue that, under many conditions, secrecy can be efficient from a social welfare point of view… The diversity of interests in democracies results in a strategic situation in which individual interest groups have incentives to engage in behavior that may prevent social improvements… Like Sunstein, I come to the conclusion that shielding representatives from “constituent pressures, including interest groups, in the hope that they will deliberate more effectively on the public good” (1985: 34-5) is also optimal under certain conditions… The main point of this paper is that transparency is not always good; rather, it is a variable of institutional design and should be treated as such. At the least, we are forced to consider that, like most conventional wisdom, the choice between secrecy and transparency is more complicated than we think.Barbara Koremenos 2010 Open Covenants, Clandestinely Arrived At
The Founders faced a paradox at the heart of democracy. For the government to be effective, it needs to be able to act secretly—in some cases, to protect democracy from its enemies, both external and internal… Congress exercises oversight over the executive’s secret activities, including military and intelligence actions. But it cannot do so publicly without compromising those very activities, and so instead a limited number of lawmakers receive secret briefings on a regular basis… The normal means for deterring government abuse—oversight, transparency, institutional competition—are inconsistent with the premise that secrecy is necessary.Eric Posner 2013 Before You Reboot (New Republic)
The question raises a real paradox. If government can keep secrets, then the public cannot hold it to account for its actions. But if government cannot keep secrets, then many programs - including highly desirable ones - are impossible.Eric Posner 2013 The Secrecy Paradox
The reform of longest lasting significance provided that House votes in the Committee of the Whole be recorded on request, which ended the secrecy often surrounding members’ votes on important measures.David King 1995 Encyclopedia of the US Congress
Many liberals believe that an unfair and corrupt political system controlled by privileged interests represents the chief obstacle to the realization of an otherwise popular left-wing agenda. Enacting reforms to the electoral and legislative process, they argue, would effectively remove this barrier, quickly producing a decisive leftward shift in the trajectory of national policy. Yet history does not support this view. Liberals in the 1970s also believed that institutions were holding back the advancement of their favored policies. They sought and achieved reforms in campaign finance, party nominations, government transparency, and congressional organization that were designed to depose moderate and conservative Democratic leaders while bolstering the influence of liberal activists at the expense of “establishment” interest groups. Rather than usher in a period of ambitious liberal achievements, these reforms in fact coincided with the close of an era of left-of-center policy change.Grossman & Hopkins 2005 The Liberal Failure of Political Reform
If legislators had been personally opposed to tax reform, all they had to do was insist that the sun must shine on any tax bill, knowing that sunshine would have destroyed tax reform.Arnold 1990 The Logic of Congressional Action
Consider how the Senate Finance Committee handled the Tax Reform Act of 1986. At first it held its markup sessions in a huge hearing room, where lobbyists could watch every decision and every vote. Quite predictably committee members voted to save most tax preferences, and even invent some new ones. Eventually senators decided to abandon all public sessions and to draft a new reform plan in total secrecy. All of a sudden the special interests were at a serious disadvantage, for they could no longer see who was responsible for terminating their favorite tax provisions.Douglas Arnold 1990 The Logic of Congressional Action
For every example… where transparency seemed to produce more accountable and effective governance — there is another where transparency either had no effect or produced a backlash that further insulated public officials from accountability to citizens.Kosack & Fung 2013 Does Transparency Improve Governance?
Just making important data available won’t cause political change. Justice Brandeis’s clever aphorism to the contrary, sunlight is not in fact the best disinfectant; actual disinfectant is. Sunlight just makes it easier for people to look at the pus.Aaron Swartz 2006 Disinfecting the Sunlight
Every negotiation consists of stages and a result; if the stages become matters of public controversy before the result has been achieved, the negotiation will almost certainly founder. A negotiation is the subject of concession and counter-concession: if the concession offered is divulged before the public are aware of the corresponding concession to be received, extreme agitation may follow and the negotiation may have to be abandoned. The necessity of negotiation remaining confidential has never been more forcibly expressed than by M. Jules Cambon, perhaps the best professional diplomatist of this century. “The day secrecy is abolished,” writes M. Cambon, “negotiation of any kind will become impossible.” Sir Harold Nicolson 1953 The Evolution of Diplomatic Method
[In Greece] negotiations were exposed to the decisions, at once cumbrous and volatile, of a body of citizens, who were extremely ill-informed, subject to gusts of anger, sentimentality, fear or suspicion, inclined at any moment to reverse previous attitudes, and disastrously slow at coming to any decision. The sole remedy for such defects would have been the creation of a body of trained negotiators, independent of party allegiances and passions.Sir Harold Nicolson 1953 The Evolution of Diplomatic Method
Secrecy has an ancient tradition in diplomacy… the secret formed the undisputed paradigm of international negotiation, both for its process as for its result: it is in all legitimacy that secret deals led to treaties intended to remain secret… Pecquet devotes a complete section of his opus (How much secrecy is necessary for success) to secrecy; like any political action, a negotiation can be jeopardized because third parties will have heard of it: “whoever lacks secrecy destroys his work while building it.” (1737: 35) – “quiconque manque au secret détruit son ouvrage en même temps qu’il l’édifie.”… There appear three distinct and successive fonfigurations of international negotiation: that in which the process as the result of the negotiation is secret; then the one where the process remains secret but the result is supposed to be public; finally, the one – today – where an injunction of transparency weighs on both the process and the result.Aurélien Colson 2009 La négociation diplomatique au risque de la transparence
It’s hard to think of any good examples of transparency work accomplishing anything, except perhaps for more transparency.Swartz 2006 When is Transparency Useful?
Because of familiar collective action problems, well-organized groups, who monitor legislative activity closely, are much better situated than the mass electorate to secure real accountability from incumbent legislators. And these groups have more resources for demanding accountability; they have not just individual votes with which to threaten lawmakers, but the ability to aggregate many votes and to withhold or deploy resources like lobbyist assistance, contributions, and the threat of independent spending. Unorganized groups do not enjoy these advantages and often lack the ability even to push their issues on to the agenda. All of this suggests that the rhetoric of widespread accountability may obscure the reality of too much accountability for some and not enough for many.Jane Schacter 2006 Political Accountability
Given members’ contention that a main reason for closed committee sessions was to bar lobbyists, it was no surprise that Ways and Means was the one panel that had unquestionably retreated from openness. With wide-ranging authority over taxes, trade, Social Security, health and welfare programs, it was perhaps the most heavily lobbied committee in the House. Committee Chairman Dan Rostenkowski, D-Ill., asked critics of closed sessions, “Are you disappointed in the legislation that’s come out of the Ways and Means Committee?” Many conceded they were not. “I hate to say it, but members are more willing to make tough decisions on controversial bills in closed meetings,” said Democrat Don J. Pease of Ohio, a former newspaper editor who usually cast the only vote against closing Ways and Means sessions. “In a closed meeting, you can come out and say, ‘I fought like a tiger for you in there, but I lost.’” Representatives of the self-described citizens’ lobby, Common Cause, which campaigned for the open-meetings rules approved by the House in 1973 and the Senate in 1975, also recognized that closed sessions, particularly in Ways and Means, at times produced legislation less weighted with special-interest provisions. By 1987, the group had stopped monitoring committees to see which were closing meetings and had stopped protesting when they found violations.Jaqueline Calmes 1987 CQ – Fading Sunshine Reforms
Robert Peck 2021 - Secret Ballot Vote in the Senate
"There’s nothing in the Constitution that requires [the Senate confirmation vote of impeachment] be on the record." ... The Senate "could conceivably ask for a secret ballot" - Robert Peck, Center for Constitutional Litigation
Most senators seem to agree that the recent changes in the rules (political action committees, increased roll-call voting and open meetings) have made negotiation and political self-sacrifice infinitely more difficult. Open meetings are singled out most often… “There was an enormous give and take,” Pearson [former Senator James B. Pearson, Republican from Kansas] says of the old closed-door committee system. “People could change their minds – as a result of hard bargaining and deliberation. But nobody wants to admit in public that he was wrong.”Alan Ehrenhalt 1982 CQ – Team Spirit of Days Gone By Evades the Senate
Even if voters were smothered with “costless” information, it is doubtful that they would pay attention and process detailed information about the complexities of public policy they do not care much about. In contrast, special interests are “naturally” better informed; compared to the general public, they get costless information as a by-product of their specialized activities, and they have stronger incentives to invest in costly information gathering, to pay costly attention to complex information, and to invest in costly expertise that allows them to understand such information. Susanne Lohmann 1998 Information Rationale For the Power of Special Interests
Institutional design might fail to increase accountability if it overlooks the fact that even behind closed doors, the actors might attempt to conceal their position, in particular when they negotiate.Stephanie Novak 2015 Secrecy and Publicity
A representative of a member state X explained that (negative) votes trigger media attention while journalists usually overlook measures adopted without opposition.Stephanie Novak 2015 How Publicity Creates Opacity
Forcing the publication of votes in an institutional setting that relies on diplomatic practices can have deleterious effects on accountability: In some cases, the publication of votes might operate as a window-dressing device, prompting the public belief that ministers are accountable since they publish their votes, while real monitoring of the decision makers’ stances is not possible.Stephanie Novak 2015 How Publicity Creates Opacity
Decision makers used to voice their disagreement more frequently when they knew their votes would not be published.Stephanie Novak 2015 Secrecy and Publicity
The publication of votes – which was supposed to increase the accountability of ministers- actually became an additional incentive for opponents to silence themselves and join the majority.Stephanie Novak 2015 Secrecy and Publicity
Interviews reveal that the different actors in the legislative process make strategic use of transparency rules over the course of negotiations. In some cases, actors tend to convert transparency rules as they use publicity to put pressure on their opponents.Stephanie Novak 2013 Transparency as Organized Hypocrisy
Perhaps the most fundamental driver of this ideological drift, however, is the most easily overlooked: the diminishing marginal returns to governmental transparency. As public institutions became subject to more and more policies of formal openness and accountability, demands for transparency became more and more threatening to the functioning and legitimacy of those institutions and, consequently, to progressive political agendas. David Pozen 2018 Transparency’s Ideological Drift
There is no doubt in my mind that if we are to have gavel-to-gavel coverage of the U.S. Senate, it will require a great deal of additional Senate oratory and Senate discussion. One of my distinguished colleagues, whom I admire greatly, whom all of us admire, a very good Senator [said that] while today he makes only about one speech a month, he would have to make at least one speech a week. Why is that? Well, the reason is that the folks back home will be asking: “Why don’t we hear from our Senator? Where is he? Where is the guy? Why isn’t he up there talking?” Even if the TV camera shows that he is in his seat while others in that area are speaking and they know he is there, they will say, “Why doesn’t my Senator get up and say something? He just sits there like a bump on a log. I want the Senator up on his feet, talking, and getting into the thick of things, saying something.” A friend of mine, a friend of all of us, a thoughtful, and scholarly, and studious Senator, said he thinks he will have to vote for TV in the Senate, reluctantly. I said, “Why?” He said, “Because the people back home don’t think I’m doing anything. One of my colleagues in the House is on TV all the time. They see him every time they turn on the TV. There he is. He is working, they say. They don’t think I’m doing anything. I have to get on that boob tube, and the only way I know how to do it is to vote for this thing and be on TV.”Senator Russell Long 1984 Congressional Record 1984
A growing body of empirical evidence and analysis points to the mixed results of transparency and accountability initiatives (TAIs) in terms of improved outcomes. For all of the widely touted success stories, similar interventions have had poor results or even negative consequences in other contexts. For example, participatory budgeting in Porto Alegre, Brazil, has resulted in increased investment in services for the poor (Ackerman 2004), but it has not been successfully replicated elsewhere (Baiocchi, Heller, and Silva 2011). Social audits in the Indian state of Andhra Pradesh have contributed to combating corruption; however, they have been largely unsuccessful in the state of Bihar (Srinivasan and Park 2013; Dutta and others 2014). In Uganda, community scorecards for health services helped reduce under-5 mortality by one-third (Bjorkman and Svensson 2009), but community monitoring of health providers in Sierra Leone had limited results in light of accountability gaps up the chain of command (Grandvoinnet, Aslam, and Raha 2015). Interpreted from the perspective of this Report, TAIs seek to reshape the policy arena by enhancing contestability and, when successful, effectively changing the incentives of decision makers in favor of certain outcomes.Helene Grandvoinnet 2017 Transparency to Accountability (World Bank)
The United States is an especially interesting example of how transparency complicates political bargaining. Committee meetings in the House of Representatives and the Senate were long held behind closed doors, but in the 1970s, procedural changes adopted by the House and the Senate opened committee meetings to the public and the press ( Rieselbach 1994). There are strong indications that these procedural changes had detrimental effects on lawmaking, reducing the willingness of House members and senators to seek political compromises. Ehrenhalt (1982) (cited in Warren & Mansbridge 2013 Political Negotiation) argues that the new rules “made negotiation and political self-sacrifice infinitely more difficult” and Binder and Lee (2015, 253) argue that the “move toward greater transparency in congressional operations” has become a “double-edged sword,” offering several examples of how transparency has undone negotiations over important policy decisions in Congress. Johannes Lindvall 2017 Reform Capacity
The value of secrecy was in reducing the number of actors, widely recognized as an obstacle in negotiations...Some of the key issues debated over the past 20 years were resolved in Paris in secret meetings among a few countries. Six working groups on the key issues were established during the second week. One of them concluded its work without a single formal session because everything was settled privately. I participated in a small “invisible” meeting regarding a secret deal between the US and Saudi Arabia. The meeting took place in a small room of 5 by 5 meters, among only 10 individuals. My delegation was asked to accept or reject the bilateral deal, without rights to negotiate or modify. No record was kept, there was no paper copy of the legal text in question that was only displayed on a small screen, and we were explicitly told not to take photos. We endorsed the deal, and so did other ‘key players.’Radoslav S. Dimitrov 2016 The Paris Agreement on Climate Change: Behind Closed Doors
There is one more type of cost that is left to discuss: the audience costs that decision-makers suffer if agents outside the political decision-making process – such as interest organizations and important groups of voters react negatively to the deals that political decision-makers are striking. In political science, the term “audience costs” was first used in the field of international relations, referring to costs that” arise from the action of domestic audiences concerned with whether the [country’s] leadership is successful or unsuccessful at foreign policy” (Fearon 1994, 577), but I am using it here in the context of domestic politics, referring to the potential consequences of having groups that are not involved in the bargaining process witnessing the bargaining process itself (as opposed to the outcome of the bargaining process) (see Groseclose and McCarty 2001). Audience costs are likely to be lower – and reform capacity is likely to be higher – in systems where political decision-makers can negotiate in secret. This may seem like a paradoxical argument to make, since we typically think of openness and transparency as virtues, not vices. But it is an argument that has been made before. If political decision-makers face “audience costs,” they become reluctant to reveal information and make arguments that they would have been happy to reveal and make in secret communications.Johannes Lindvall 2017 Reform Capacity
[The scoring of public votes began as a] lobbying tactic with an electoral edge, intended to produce legislative results by threatening hostile lawmakers with the prospect of electoral retribution. Scorecards were meant to wean group members off party labels as their sole guide in the voting booth, under the theory that greater influence could be secured through nonpartisanship. Instead, members should support a group’s true “friends”—lawmakers who reliably backed favored measures, as shown by their record, not their rhetoric—and punish those “enemies” who did not…Legislators did not take kindly to this scrutiny and its coercive flavor. They “looked upon it as black-listing,” she explains. Some rank-and-file members were also troubled by its imperative quality regarding their own vote.
ADA and ACA scores have been heavily utilized in political science as proxies for liberalism and conservatism and used to demonstrate the growing polarization of the congressional parties. Archival evidence suggests, however, that those scores were intended to create the very phenomenon they have been used to measure. They were deeply political rather than objective metrics, which the ADA and ACA used to guide their electoral activities in accordance with an increasingly partisan strategic plan. Each group directed campaign resources toward incumbent lawmakers they rated highly, but they did so unevenly—with the ADA favoring liberal Democrats over Republicans and the ACA showing a preference for conservative Republicans over time. By rewarding favored lawmakers in their preferred party, and using scores to highlight and discourage ideological outliers, they hoped to reshape the parties along more distinct and divided ideological lines.Emily Charnock 2018 Interest Group Ratings
James D’Angelo 2018 - University of Florida Law School
A main reason for adopting secrecy…has always been the desire to protect voters and jurors from bribery and intimidation. In his statistical analysis of the adoption of the secret ballot in national elections, Przeworski finds that both the extension of the suffrage and the introduction of the secret ballot seem to have resulted from the elites yielding to revolutionary threats by the lower classes, but to some extent also from the desire to protect opposition voters from intimidation by incumbents…As Giannetti shows in her chapter, another effect is that deputies cannot be held accountable by party leaders…Bentham defended the practice of secret voting in the Polish parliament at a time when Poland was under Russian domination. Under certain conditions, it may be more important to prevent an autocrat from punishing representatives than to ensure that the voters can punish them by non-reelection…Jon Elster 2015 Secrecy and Publicity
The “secret congress” theory holds that bills which attract public attention are born to partisan rancour, endure a life of torture and usually die a miserable death. For a recent example, look only to the much-hyped bipartisan deal that sought to patch up America’s broken immigration system and steer much-needed funds to Ukraine. It took months of work to craft the compromise; when it was unveiled on February 4th it barely lasted one business day before being left for dead. But the theory also holds that successful compromises happen all the time as long as no one makes a fuss over it.Economist 2024 Congress might just pass an astonishingly sensible tax deal
[In secret, closed-door sessions] opposing parties can share their perspectives freely and come to understand the perspectives of others.Mark Warren & Jane Mansbridge 2013 Political Negotiation (partisanship)
Rep. Jeff Jackson 2023 - Angry artisanship in open meetings, cordiality in closed
“I’m still brand new to Congress—I’ve only been there 100 days—and I don’t know if I’m not supposed to say this out loud, but it’s true and important. And if you don’t know this, you need to. It’s really clear from working there for just a few months that most of the really angry voices in Congress are totally faking it. These people who have built their brands around being perpetually outraged? It’s an act. I’ve been in committee meetings that are open to the press and committee meetings that are closed. The same people who act like maniacs during the open meetings are suddenly calm and rational during the closed ones. Why? Because there aren’t any cameras in the closed meetings, so their incentives are different.” LINK TO TWEET
Transparency, disclosure and gaming by small cadres of organized actors can go together. Need to consider the whole… I know of many cases where transparency massively backfired. Without other institutions & safeguards, the powerful can benefit more.Zeynep Tufekci 2017 Transparency and Disclosure
A good two-minute speech can, and often does, take a half-hour for a politician with a national television audience.Senator Dale Bumpers 1999 How Sunshine Harmed Congress
It is not difficult to understand why the concept of secret deliberations, out of earshot of the King, would have special appeal in the colonial assemblies, the Continental Congress, the Congress of the Confederation and the Federal Convention to frame the Constitution. And, indeed, it was frequently utilized in all of these legislative assemblies in early American history.Donald Wolfensberger 1992 Committees of the Whole
Note: The first known secret committees were conducted in England in the 1600s. And the committee of the whole (which voted and deliberated in secret) was developed expressly to prevent intimidation from the King
De Alva Stanwood Alexander, a former Member of the U.S. House of Representatives, in his History and Procedure of the House of Representatives, observes of this birth of the Committee of the Whole concept in England that: It originated in the time of the Stuarts, when taxation arrayed the Crown against the Commons, and suspicion made the Speaker a tale-bearer to the King. To avoid the Chair’s espionage the Commons met in secret, elected a chairman in whom it had confidence, and without fear of the King freely exchanged its views respecting supplies.Donald Wolfensberger 1992 Committees of the Whole
Note: The first known secret committees were conducted in England in the 1600s. And the committee of the whole (which voted and deliberated in secret) was developed expressly to prevent intimidation from the King
A healthy debate on this topic is long overdue. There is shockingly little empirical research to date in political science about transparency, open meeting laws, disclosure rules and related topics.Francis Fukuyama 2015 The Limits of Transparency
The main case against excessive transparency is simple and has three components. First, it undercuts deliberation (have you seen many reasoned open debates in Congress lately?); second, the kinds of disclosure and compliance rules we impose on public officials deters many good people from entering government, and imposes huge burdens on those who do; and finally, it makes very difficult the kind of deal-making that our decentralized system of budgeting requires.Francis Fukuyama 2015 The Limits of Transparency
Secret negotiations were a motif this week. U.S. and Chinese negotiators began meeting last July trying to bridge their differences on emissions reductions, symbolically at the Great Wall. The Guardian broke news of the meetings on Monday, reporting that senior Bush administration advisers and several current Obama advisers met with Chinese officials. The back-channel talks led in March to an unsigned memorandum of understanding, which participants hope will embolden the world’s two largest national emitters to find a common ground in addressing the causes of climate change.Josh Wilson 2010 Scaling the Great Wall of Climate Change
Arguing geared to a reasoned consensus is more likely in private in camera settings and behind closed doors given the considerable risks, which actors face when they expose their interests or even identities to arguing (Jeffrey Checkel 1999). Thus, arguing in front of a public would rarely result in a true dialogue, but more likely lead to ritualistic rhetoric and purely strategic reasoning… private in camera settings during negotiations work particularly well in cases of what game theory calls ‘mixed motive games,’ that is, instances in which actors hold fixed preferences to maximize their egoistic interests, but would also prefer mutual cooperation under specific circumstances. In such instances institutionalized ‘in camera settings’ such as the ‘confession talks’ during European Council summits allow actors to explore potential compromises, to seek out the justifiability of their interests, and the like. These settings allow for arguing and persuasion, because negotiators do not have to stick to their fixed preferences behind closed doors and are allowed to ‘think out aloud’ about possible negotiating solutions… We found many instances, where controversial passages in drafted papers were negotiated within a smaller group of negotiators behind closed doors… In moments like these, arguing behind closed doors and ‘in private’ permits skilled diplomats to go beyond their instructions and to explore possibilities for compromise.Cornelia Ulbert & Thomas Risse 2005 Deliberately Changing the Discourse: What Does Make Arguing Effective?
[T]ransparency entails tradeoffs, imposing direct costs on successful dealmaking. This is especially true given today’s exceptionally polarized and competitive political parties and given the information environment in which lawmakers work. …greater public attention to Congress today combined with polarized parties increases the incentives of lawmakers to adhere to party messages. Such partisan constraints on lawmakers are rarely conducive to setting aside differences and negotiating a deal. Bass et. al. also argue that “backroom wheeling and dealing is just as possible now as it ever was.” We suspect that the opposite is true. Pressures on politicians are more immediate and intense than they were in the past. That makes it harder (though surely not impossible) for lawmakers to engage with each other directly, especially across party lines. And as we argue, such interactions out of the public eye are critical for crafting integrative policy deals, agreements in which the negotiating coalitions care unequally about different parts of the deal.Sarah Binder 2014 The Limits of Legislative Transparency
The Commons met in secret… and without fear of the King freely exchanged its views respecting supplies (claiming that the reason for secrecy in legislatures was to remove the intimidating pressure of the King).Donald Wolfensberger 1992 Committees of the Whole
The idea that private negotiations to cut the deficit are somehow bad is fatuous and ill-considered.Joshua Green 2011 Against Supercommittee Transparency
What I did was politics. And to do politics you have to have rooms where what goes on in Vegas stays in Vegas. And then you take it out of the room and you either sell it (present the final legislation) and you either succeed or you fail. But unless you have a deliberative space which is safe, you can’t do what you were sent there to do…Transparency takes us to trust and it takes us to actually what representative democracy is.Michael Ignatieff 2014 Tensions in Transparency (Harvard talk)
Nobody was in the room, nobody knows what was said, but they got the thing done. That’s politics. And we look back on both of those leaders, one democrat and one republican with a lot of nostalgia.Michael Ignatieff 2014 Is Transparency Bad for Politics? (Interview by Matt Cadwallader)
Peace talks are often a climax — coming after months of preparation, secret negotiations and a degree of confidence-building.Sanam Naraghi Anderlini 2014 Peace Negotiations and Agreements
If legislators hide their tracks by delegating authority to the executive, by combining all actions into a single omnibus bill, by meeting behind closed doors, or by acting without a recorded vote, then citizens cannot reward or punish their legislators for their individual actions. In contrast, if legislators are forced to take public positions on specific programs, citizens can hold their legislators accountable for the positions they take.Douglas Arnold 1990 The Logic of Congressional Action
Even when everyone involved had only the best of intentions, being observed distorted behavior instead of improving it. My findings… suggest that more-transparent environments are not always better. Privacy is just as essential for performance… Total transparency heightens the risk that our irreverence will come back to haunt us—and thus has a chilling effect on experimentation. It it’s also critical for leaders to mitigate transparency with zones of privacy, enabling just the right amount of deviance to foster innovation and productivity.Ethan Bernstein 2014 The Transparency Trap
Whether the vote-buying or vote-options approach is used, presumably legislators get paid sufficiently, through some combination of carrots and sticks.David King & Richard Zeckhauser 2003 Vote Buying Requires Transparency
In Woodstock, Vermont, which voted via secret ballot, the non-binding resolution [for tighter gun control] passed overwhelming, with 707 voters calling for more stringent rules on guns, and 186 saying no, according to town clerk Jay Morgan.Jack Thurston 2014 Vermont Towns Tackle Gun Control
Pennsylvania Governor Ed Rendell also said that in a secret ballot, sensible gun control would get 300-350 votes in Congress, and he concluded that “I think we can all agree on what reasonable gun control is and what responsible and reasonable gun ownership is and they both can coexist.”Will Bunch 2009 What’s Next for Governor Ed Rendell?
In a recent column in the Philadelphia Inquirer, an unnamed Pennsylvania legislator said that in a secret ballot in the General Assembly, one gun a month [gun control] would pass by a 3-to-1 margin.Legislative Journal of Pennsylvania 2007 191st Session
Leach introduced a bill in the Pennsylvania Senate this year that would have legalized marijuana. Passage remains unlikely, but if there were a secret ballot, he said, “it would pass overwhelmingly.” A conservative lawmaker who was publicly opposed to the bill, Leach said, told him privately, “I hope it passes so I can stop smoking pot in my living room and start on my front porch.”David Freelander 2013 The New Politics of Pot: The 2014 Candidates Who Want to Legalize It (Marijuana)
“If the gas tax could be voted up or down on a secret ballot, it would get 285 yes votes in the House and 85 or 90 in the Senate,” says Rendell. “Everyone knows we need new revenue, everyone knows we can’t let the trust fund go broke … Everyone knows this is one of the most embarrassing chapters in the history of the U.S. Congress.”Alec MacGillis 2015 How the ‘Embarrassing’ Gas Tax Impasse Explains Washington
Sen. Joe Manchin said Thursday if the National Rifle Association hadn’t interfered by telling [threatening] lawmakers their votes on background checks would be factored into its grading system, the bill would have passed. “If they hadn’t scored it, we’d have gotten 70 votes,” Manchin said. Mark Kelly, Gabby Giffords’ husband, said fear lead senators to vote “no” on the bill. “If that [gun control] vote had been a secret ballot, I bet you it would have passed with 80 votes… A lot of the senators that we met with over the past days and weeks–you know, we discussed this legislation with them, we talked about how it would work, what it would do, and most of them – actually, almost all of them – said that they were in favor of the policy on the merit.” Gabby Giffords, herself a victim of gun violence, called out the “cowardice” of senators in a New York Times op-ed following Wednesday’s gun vote.Sarah Muller 2013 The NRA ‘made a big mistake’ on gun bill
When votes look as though they may be close, clever leaders seek out those members, often cross-pressured already, whose votes might be tipped in their direction most cheaply. Leaders then induce them - through compromises, side payments, and threats – to pledge their votes should they be needed.David King & Richard Zeckhauser 2003 Vote-Buying Requires Transparency
Nearly 80% of the 108 Climate Assembly UK members agreed in a secret ballot that government steps to boost the economy should be designed to help achieve net-zero emissions by 2050 — a target enshrined in British law last year.Megan Rowling 2020 UK Citizens’ Assembly on Climate Change Backs a Green Coronavirus Recovery
Conversations between assembly members are private and never live streamed to ensure they feel able to have full and frank discussions.Climate Assembly UK 2020 The Path to Net Zero
The UK, New Zealand and Australia have no provisions for voting by means of a secret ballot in motions of no confidence. In addition, there are no exceptional mechanisms to enable such a vote. In all three of these jurisdictions, there is a strong sense that Parliament has the sole discretion to determine its own procedures. One explanation for this is that these jurisdictions have strong traditions of parliamentary sovereignty, it is unlikely that any constitutional framework would interfere with parliamentary rules. However, in all these jurisdictions, there is no express prohibition on voting by secret ballot.University of Oxford 2017 Secret ballot voting by the National Assembly in motions of no confidence
This special procedure was utilised by a request of one-fifth of MPs when the Vote on the EU Budget 2014 – 2020 took place back in February 2013. In that instance, the special procedure was aimed at preventing national governments from bullying MPs by threatening to expose their [secret ballot] votes in this sensitive matter.University of Oxford 2017 Secret ballot voting by the National Assembly in motions of no confidence ( UK, European Union)
On Thursday, the NRM's Central Executive COmmittee (CEC) approved an amendment of the party's constitution to rid voting by secret ballot and instead allow voting by queuing in the internal elections. No candidate is expected to oppose the president in a move that will tighten his grip on the ruling party. Party electoral commission chairperson Dr. Tanga Odoi says the queue voting seeks to streamline violent and shoddy primaries and 'bad manners' which leave the pary divided every electoral season.Jonathan Kamoga 2020 NRM to endorse Museveni for another term
Note: In Uganda members of parliament sought secret voting in the legislature to diminish the intimidating presence of the president - who actively opposed secrecy. Clearly open voting diminishes partisanship as it allows for leaders to intimidate their rank and file.
Arguing in front of a public would rarely result in a true dialogue, but more likely lead to ritualistic rhetoric and purely strategic arguing.Cornelia Ulbert, Thomas Risse & Harald Müller 2004 Arguing and Bargaining
Arguing geared to a reasoned consensus is more likely in private in-camera settings and behind closed doors given the considerable risks which actors face when they expose their interests or even identities to arguing.Cornelia Ulbert, Thomas Risse & Harald Müller 2004 Arguing and Bargaining
The history of secret diplomacy, under Republican and Democratic administrations alike, clearly illustrates its benefits. The most important diplomatic breakthrough of the Cold War, the opening to China, began with secret negotiations between Henry Kissinger, then President Richard Nixon’s national security adviser, and Chinese Premier Zhou Enlai. Kissinger’s top-secret trip to Beijing in 1971 laid the groundwork for Nixon’s historic visit the following year. And the warming of Sino-US relations helped widen divisions between China and America’s Cold War adversary, the Soviet Union. Likewise, President Barack Obama’s signature diplomatic achievement, the 2015 Iran nuclear deal, could not have been achieved without secret talks. In March 2013, Obama sent two senior State Department officials, William J. Burns and Jake Sullivan, to begin secret conversations with the Iranians in Oman. Given that diplomatic relations between the two countries had been severed for more than 30 years, and that each country was radioactive in the domestic politics of the other, holding preliminary negotiations in public would have been a non-starter. Soon enough, the secret conversations led US officials to conclude that the Iranians were serious about entering into formal talks.Graham Allison 2018 The Case for Secret Diplomacy
Scholars argue that secrecy was essential to Communist China and the US opening diplomatic relations, Israel and the Palestinian Liberation Organization (PLO) negotiating key parts of the Oslo Accords, and the Soviet Union (USSR) demonstrating its willingness to escalate conflict in Angola.Raymond Kuo 2019 Secrecy Among Friends
All laws are born of negotiations. The settings and contexts for these negotiations contrast sharply with those for labor leaders and business executives, who are usually blessed with quiet negotiation rooms, reasonably unified principals, and the task of completing deals one at a time. Politicians often negotiate in a bubble, with interests groups and the media watching… Votes are visible and easily monitored by principals, but the art of negotiation lies strongly in shaping legislation before a vote.David King & Richard Zeckhauser 2002 Punching and Counter-Punching in the U.S. Congress
Revealing the agent’s action leads to conformism. (A great description of partisanship)Andrea Prat 2005 The Wrong Kind of Transparency
The concepts of transparency and accountability are closely linked: transparency is supposed to generate accountability. This article questions this widely held assumption. Transparency mobilizes the power of shame, yet the shameless may not be vulnerable to public exposure. Truth often fails to lead to justice.Jonathan Fox 2007 Uncertain Relationship
We should avoid the common habit of thinking of individuals as the principal users and beneficiaries of transparency. Instead, professionals and organizations often constitute the most important users of public disclosures.Archon Fung 2013 Infotopia
If the deal is to pass, future discussions might have to happen sotto voce.Economist 2024 The "Secret Congress" Theory
Lobbyists learn about legislators. They study their biographies, their voting records, and the predilections of their constituents. They examine members’ policy agendas and how they may be changing, their political situation, their constituents’ views on issues, and the strength (and identity) of their likely opposition in the next election. They scour such vital information as the legislator’s religious affiliation, previous employment, and spouse’s name and occupation, all in an effort to understand how best to persuade the legislator. Federal Elections Commission records and financial disclosure forms provide names of contributors and personal information (such as stocks owned and clubs joined) that can aid the lobbyist in finding ways to influence the member. Lobbyists target members for lobbying by identifying key “swing” votes: legislators who are capable of being persuaded. They then use voting records, election statistics, public statements, and information about the member and the district to find the right “hook” to persuade the right member, including grassroots mobilization that reinforces their inside lobbying efforts. Barry R. Rubin 2000 Guide to Politics in America
First, the actual evidence on transparency’s impacts on accountability is not as strong as one might expect. Second, the explanations of transparency’s impacts are not nearly as straightforward as the widely held, implicitly self-evident answer to the ‘why’ question would lead one to expect. To evoke the power of sunshine is both intuitive and convincing. Indeed, these principles have guided my past 15 years’ work. Nevertheless, recently, after reviewing the empirical evidence for the assumed link between transparency and accountability, I have come to the conclusion that one does not necessarily lead to the other. Jonathan Fox 2007 Uncertain Relationship
Reputational concerns lead to the loss of socially valuable information.Stephen Morris 2001 Political Correctness
Transparency on action can induce the agent to disregard useful private information and act in a conformist manner. As a consequence, the principal can be better off by committing not to observe the action.Andrea Patacconi & Nick Vikander 2013 On Management of Public Opinion (referring to work of Andrea Prat)
The big problem with congressional capacity is that voters hate it – they don’t hate the idea of Congress being well informed, but they hate the idea of members spending money on themselves… And if you ever live in a swing district, you can hear whatever you want about policy issues, but two weeks before the election, every palm card that comes home, “Look how much money he spent on his own salary, or look what he did” And constituents just hate the idea of members of Congress spending any money on themselves. And so, members are loath to take any votes that show them spending any money on their own salary, on their staff salaries, on fixing up the hill, or anything like that. I was a staffer at leg branch appropriations. And this was a horrible mess, trying to get members and the capital complex would be crumbling, and members would say “We got to do something about this, but… ugh… can we make it really invisible so I don’t have to show people I voted for this.” And so that’s a huge problem… .One way that members can compensate their staff more without having to take any tough votes, is by putting more staff benefits off budget… .With that said, I don’t think there’s a huge appetite on the hill to follow through on radically increasing staff or salary. You talk to any member, off the record, in private, and of course they’d like to pay their staff more, and, of course, they’d love to have more staff. But the votes are extremely difficult to take, and that’s kind of the price of a representative democracy.Casey Burgat & Matt Glassman 2018 On Legislative Capacity
Note: We highlight the sections where it seems clear that increased transparency drives worsening conditions for members of Congress, which, indirectly result in diminished outcomes for constituents. Too much constituent pressure can be bad.
Washington has become subject to what psychologists call the “observer” effect, whereby subjects who know they are being watched alter their behavior. Many predicted this result long before C-SPAN became a Washington institution. In the Senate, Howard Baker, the longtime majority leader, faced broad opposition to allowing cameras in the Senate chamber. His colleagues feared that senators would begin to talk to cameras instead of each other. Predictably, members of Congress now pay little to no attention to their colleagues’ statements. C-SPAN hasn’t simply exposed dialogue that was once partially shrouded; it has entirely changed the substance of the conversation itself… Floor debate had transitioned from being a tool of internal deliberation to a platform for political posturing.Jason Grumet 2014 The Dark Side of Sunlight (City of Rivals)
While transparency, access, and oversight are crucial to any working democracy, their unencumbered embrace has also encouraged a vicious cycle that has undermined governing effectiveness and legitimacy.Jason Grumet 2014 The Dark Side of Sunlight (City of Rivals)
Our results show that transparency decreases embezzlement while it has no significant effect on bribery.Daniel Parra, Manuel Muñoz-Herrer, Luis A. Palacio 2021 The Limits of Transparency in Reducing Corruption
Too much transparency may inflict damage on organizations by making them conflicted and vulnerable.Vladislav Valentinov, Gert Verschraegen, Kristof Van Assche 2019 The Limits of Transparency: A Systems Theory View
Transparency provisions often seem to result in more centralized control of official information than before, in spite of the protest rhetoric of “openness”Vladislav Valentinov, Gert Verschraegen, Kristof Van Assche 2019 The Limits of Transparency: A Systems Theory View
Moreover, “the individuals in each group announced their choice orally, one by one, to the teller, or rogator. How individuals voted was therefore a very public affair”; the combination of voting procedures and social realities ensured the upper classes a powerful influence over the voting assemblies.Alexander Yakobson 1995 The Secret Ballot and its Effects
First, while there are benefits to transparency – and final votes on all legislation should always be on the record – there are also benefits to nontransparency. In the current political climate, for example, we would likely get better results – and more of the essential compromise on which a populous democracy depends – if legislators were permitted to negotiate privately without fear of being pummeled for “selling out” if they seek ways to advance their principles and still allow government to function. That same concern allowing government to function – is a strong argument for electing a Speaker by secret ballot, as is done in the British House of Commons. This would allow every member of the House to vote for that candidate he or she actually believes would best perform the functions of Speaker, without being exposed to retaliation for lack of fealty to one’s club.Mickey Edwards 2012 Parties Versus the People
The Hays group, knowing it was on thin ice, did no stomping around in the Senate, where the bill was passed overwhelmingly without a record vote. Barkley arranged to waive a roll call so he could keep both the friendship of the movies and of the reform organizations.Kenneth G. Crawford 1939 The Pressure Boys
Note: Here, ‘the Hays Group’ and ‘the movies’ refers to the pro Hollywood corporate lobbyists who were protecting the motion picture industry. Hollywood was under fire for acting as an oligarchy and so there was antitrust legislation in the works. The reformers were fighting back against Hollywood. They included many religious groups and citizen organizations. The situation was heated. But Congress pushed the matter behind closed doors in order to prevent further polarization and to open up the conscience of many members who were afraid to stand up against the might of the industry.
Republican newspapers railed against Senate secrecy. “Are you freemen who ought to know the individual conduct of your legislators,” editor Philip Freneau challenged readers of the National Gazette, “or are you an inferior order of beings incapable of comprehending the sublimity of Senatorial functions, and unworthy to be entrusted with their opinions?” The longer the Senate’s doors remained closed the more suspicion they generated. In 1794, when Federalists questioned the credentials of Republican Senator-elect Albert Gallatin, they feared that a secret debate might raise accusations of a Star Chamber proceeding. They agreed to open this one debate to the public, but the doors never completely shut. The Senate ordered construction of a gallery, which it opened in December, 1794 – for legislative debates. All treaties and nominations continued to be debated in secret until the twentieth century.
A fickle press showed little interest in the Senate’s open sessions. Freneau’s National Gazette closed down before it could cover the Senate. The Philadelphia Aurora sent a reporter to the Senate gallery but found the show too staid. Newspapers admired the dignity of the senators but devoted more space to the rambunctious House. “Henceforth you will read little of me in the Gazettes,” one representative advised his wife after his election to the Senate in 1804. “Senators are less exposed to public view than Representatives.Donald Ritchie 1991 Press Gallery: Congress and the Washington Correspondents
Note: The very newspapers that were so furious about secrecy failed to show up to observe Congress when the doors were opened. The galleries remain to this day mostly empty with a scattering of lobbyists.
Leaks of secret documents triggered even louder outbursts. In 1844, the Senate censured one of its own members, Ohio abolitionist Benjamin Tappan, for supplying the press with confidential documents about a treaty to annex Texas. Two years later, the Senate investigated the Washington correspondents of the New York Tribune and Philadelphia North American for unauthorized publication of the Oregon boundary settlement. By 1848, emotions reached fever pitch when the Senate imprisoned a New York Herald reporter for publishing the still secret treaty of GuadalupeHidalgo, which ended the Mexican War.Donald Ritchie 1991 Press Gallery: Congress and the Washington Correspondents
Note: The Senate imprisoned a reporter for publishing a secret treaty! How times have changed.
Secrecy fit the ambience of the late nineteenth-century Senate, which resembled something of a private gentleman’s club. Through seniority and increased party regularity, a handful of committee chairmen controlled its proceedings and exercised enormous influence over the workings of the federal government. Senators insisted upon the necessity of secret sessions to protect national interests during treaty debates and to preserve the reputations of presidential nominees; but secrecy also strengthened the Senate’s power over treaties. Closed doors fostered an atmosphere that encouraged the Senate to amend, revise, and reject treaties at will…Whenever the Senate shifted from legislative to executive business, it cleared spectators from the galleries – including the press gallery – and bolted the doors behind them. In the informality of their executive sessions, senators unbuttoned their vests, lit up cigars, and stretched out on the chamber’s leather couches. Some senators felt that the relaxed nature of the closed-door sessions reduced friction and avoided the posturing that slowed down their public proceedings.Donald Ritchie 1991 Press Gallery: Congress and the Washington Correspondents
Note: Ritchie in his book often argues that the press found out all necessary secrets and votes, but this is entirely doubtful and appears to be little more than speculation on his part, in part based on the bombast of the journalists themselves.
The United States House of Representatives is among the most transparent and representative legislative bodies in the world. All citizens have the right to call or visit their representative’s offices and offer their opinions. Television cameras record and TV stations (and now the Internet) disseminate a variety of speeches, votes, debates, committee meetings, and other legislative actions of lawmakers. Records of representatives’ opinions, statements, votes, and finances are publicly available and searchable. The floor of the House of Representatives is a manifestation of majority ruled politics. Yet even with these transparent building blocks, the House of Representatives, like many other systems, has procedures so complex and evolving that few individuals are able to fully grasp the entirety of what goes on and to imagine how to impact the process. Trevor Corning, Reema Dodin & Kyle Nevins 2017 Inside Congress
Transparency requirements exacerbate “career concerns”, in which politicians may have an incentive to pander to the public, or they may allow third parties to incentivize behavior not in the public interest.Ronen Gradwohl & Timothy Feddersen 2015 Persuasion and Transparency
Think twice before implementing anything like radical transparency… Requiring transparency may actually yield less information than allowing deliberations to go on in private.Ronen Gradwohl & Timothy Feddersen 2015 The Downside of Transparent Decision Making
Gersbach and Hahn (2001), Fingleton and Raith (2005), Stasavage (2004) and Sibert (2003) focus directly on the comparison between secretive and transparent mechanisms. They all show that secrecy may induce better decisions because it reduces the incentives of an individual to distort her actions in order to signal her type.Gilat Levy 2005 Decision Making in Committees: Transparency, Reputation and Voting Rules
Furthermore, the secret ballot, normally employed in such cases, makes it impossible for any external observer to tell whether voting commitments are honored or not. Under circumstances such as these, the individual voter will make his voting decision in accordance with his own preferences on the single question posed.
In this model each voter indicates his preference, and the preference of the majority of the whole group is decisive. The defect in this procedure (a serious one that has already been mentioned in Chapter 9) is that it ignores the varying intensities of preference among the separate voters. A man who is passionately opposed to a given measure and a man who is slightly favorable but does not care greatly about it are given equal weight in the process of making final decisions. It seems obvious that both of these individuals could be made better off, in terms of their own expressed preferences, if the man strongly opposed should be permitted in some way to “trade” or exchange something with the relatively indifferent supporter of the proposed measure.
Applying the strict Pareto rules for determining whether one social situation represents an improvement over another, almost any system of voting that allows some such exchange to take place would be superior to that system which weights all preferences equally on each issue.James M. Buchanan & Gordon Tullock 1962 The Nobel Prize winning work on benefits of congressional vote buying
Since the time of Newt Gingrich’s speakership, wedge issues have been a significant part of partisan efforts to use House debates not just to advance legislative policy but to drive a wedge between a congressperson of the other party and his or her constituents by forcing votes on amendments on which the views of constituents and party leaders are at odds. Before the 1970s, votes on amendments were generally not recorded – House members voted by voice, by raising hands, or by walking down the center aisle to be counted. When small groups of members began to insist that votes on amendments, even those that reflected intentionally divisive wedge issues, be “on the record,” Congress became more transparent and its members became more accountable, but at the cost of turning the House into a battleground for partisan advantage. Mickey Edwards 2012 Parties Versus the People
As attractive as the notion may be that “sunshine is the best disinfectant” when it comes to politics, conducting negotiations in the open often leads to a hardening of partisan positions and a refusal to talk honestly about the political constraints affecting any deal. When done in the open and in view of a media likely to characterize negotiations as zero-sum, partisans feel compelled not to show any weakness. As a result, the entire give-and-take of a negotiation is likely to disintegrate into a game of chicken, as opponents view the process more as a way to win political points than to solve problems.Nathaniel Persily 2014 Solutions to Political Polarization in America
It is no secret that negotiations are best done in private. James Madison remembered that, in writing the Constitution [and] the same principles of successful negotiation hold more than two centuries later. Examples of the White House and Congress strategically engaging in quiet negotiations to produce important legislation include the Clean Air Act Amendments of 1990, the budget agreement of 1990, and the No Child Left Behind Act of 2001… Low-keyed, good-faith negotiations began shortly after the president submitted his FY 1998 budget, and senior White House officials held a series of private meetings with members of Congress. Unlike the political posturing in late 1995 and early 1996, neither side focused on moving the negotiations into the public arena.
Staying private made it easier for both sides to compromise, and they each gained from doing so. For Republicans, the budget agreement capped a balanced-budget and tax-cutting drive that had consumed them since they had taken over Congress in 1995. They won tax and spending cuts, a balanced budget in five years, and a plan to keep Medicare solvent for another decade. Thus, although they did not achieve a radical overhaul of entitlement programs, they did make substantial progress toward their core goals… The decision of President Clinton and the Republican congressional leaders to seize on the opportunity provided by the surging economy and the groundwork laid by the budgets of 1990 and 1993 and to quietly negotiate and compromise, letting everyone claim victory, made the budget agreement possible.George C. Edwards 2015 Staying Private - Solutions to Polarization (Climate, Persily)
The same principles of successful negotiation [via secrecy] hold more than two centuries later. Examples of the White House and Congress strategically engaging in quiet negotiations to produce important legislation include the Clean Air Act Amendments of 1990, the budget agreement of 1990, and the No Child Left Behind Act of 2001.George C. Edwards 2015 Staying Private - Solutions to Polarization (Climate, Persily)
This seemingly counterintuitive opinion — that outcomes would improve if the process is obscured — is catching on in Washington among political elites of both parties as a way of making a dysfunctional Congress work again. Zeke Miller 2013 Bring Back the Smoke Filled Room (Time Magazine)
Common Cause simply has everything upside down when they advocate ‘sunshine’ laws. When we’re in the sunshine, as soon as we vote, every trade association in the country gets out their mailgrams and their phone calls in twelve hours, and complains about the members’ votes. But when we’re in the back room, the senators can vote their conscience. They vote for what they think is good for the country. Then they can go out to the lobbyists and say: “God, I fought for you. I did everything I could.”Sen. Robert Packwood 1988 Showdown at Gucci Gulch
Modern scholars have long regarded the change (to secret voting) as a democratic one, lessening the control of the upper classes over the electorate, and enhancing the voters’ effective freedom of choice.Alexander Yakobson 1995 The Secret Ballot and its Effects
Roll call votes can be a useful tool to examine certain aspects of legislative behavior. Scholars who choose to use roll call voting as the basis of their studies, however, must consider how electronic voting has changed member behavior. Prior to 1973, members were at the mercy of party leadership, the media, and their own observations when determining how other members were voting. Today, all a member has to do is look up at the display boards and see what color dot appears next to their colleague’s name. The increase in information available in real time to members has undoubtedly changed voting strategies.Jacob Straus 2012 The Rise of Roll Call Votes
It is possible to have full transparency on the supply side of the equation and… much less than full transparency on the demand side.Albert Breton 2007 The Economics of Transparency in Politics
(This quote highlights a number of the ways for a congressman to ‘sell’ their vote for fame or fortune, all of them relying on transparent/public voting) Different congressmen pursue quite different goals – reelection, power and prestige in the House, the approval of the editorial writers of The New York Times, a good shot at a seat in the US Senate, the framing of policy in the national interest – but congressmen do have goals and try to use their votes on the floor of the House to enhance the probability of attaining them. A few ‘bad’ votes may not significantly alter the congressman’s chances for successful goal attainment, but the innate prudence of ambitious men dictates strenuous efforts to avoid mistakes and to calculate the consequences of their actions and votes as much as possible.Matthews & Stimson 1975 Yeas and Nays
If ‘more visibility [aka transparency]’ is displayed, as it is being displayed, as a universal panacea, it is likely to produce far more ills than it cures. To the extent that visibility hampers responsible behaviour, instigates image-selling and demagogy, intensifies conflicts, leads to decisional paralysis or, in international politics, to defeat, to the same extent external risks are best looked after by other means and ways of control. Let alone that the efficacy of a searchlight diminishes with its diffusion. Too much visibility, on too many things, drowns visibility.Giovanni Sartori 1975 Will Democracy Kill Democracy
We all know why some senators would want a secret ballot; plenty of Republican senators who privately can’t stand Trump and who would strongly prefer a President Pence would vote to remove Trump from office if they knew they wouldn’t face punishment in a subsequent GOP primary. In a 75-25 vote in favor of removal, all 53 Republican senators could insist they were among the “no” votes, with no official record to contradict them. (This might apply to relatively Trump-friendly red state Democratic senators like Joe Manchin, too.)Jim Geraghty 2019 A Secret Ballot for Impeachment
If there was a secret-ballot vote it [gun control] would pass overwhelmingly, because from a substantive point of view most of these senators understand that this is the right thing to do.Matt Bennett 2013 Washington Post - Firearm advocates target gun-control measures
Colorado Gov. John Hickenlooper, a potential 2016 democratic candidate for president, has a creative — and controversial — idea for ending Washington, D.C.’s partisan gridlock: start legislating from behind closed doors, following on other calls to bring back the earmark. After decades of fights for transparency in government, Hickenlooper told TIME that those well-intended initiatives are making government and lawmakers less effective. “We elect these people to make these difficult decisions, but now they are in the full light of video every time they make a decision,” Hickenlooper said at the National Governors Association meeting in Milwaukee, Wis. on Friday. “We elected these people, let them go back into a room like they always did.” One Republican governor in attendance endorsed the idea on the condition he not be named. This seemingly counterintuitive opinion — that outcomes would improve if the process is obscured — is catching on in Washington among political elites of both parties as a way of making a dysfunctional Congress work again.Zeke Miller 2013 The Bipartisan Call To Bring Back The Smoke-Filled Room
For instance, [secrecy] protects the freedom of the voter. Conversely, [transparency] distorts when it imposes ‘image selling’ to the detriment of ‘responsible behaviour’. Furthermore, [transparency] can well enhance, if not create, conflicts; so much so that ‘removal from [transparency]’ is the most usual way of lessening tensions. The latter two aspects can be illustrated by the actual proceedings of the Italian parliament, where most legislation is enacted by the parliamentary commissions and is possible only because these commissions are truly invisible committees.Giovanni Sartori 1975 Will Democracy Kill Democracy
It is difficult, if not impossible, to isolate the effects of closing markup sessions. However, interviews with committee members suggest that the return to closed sessions may have reduced the influence of particular interests and clientele groups in committee decisionmaking and may have also encouraged members to take a broader view of the issues at stake in recent tax legislation.Randall Strahan 2011 The New Ways and Means
Transparency, unlike other forms of regulation, has a major disadvantage: it assumes that those who receive the information released by producers or public officials can properly process it and that their conclusions will lead them to reasonable action. However, the well-known and often-cited findings of behavioral economics demonstrate that very often the public is unable to properly process even rather simple information because of “wired in,” congenital, systematic cognitive biases.Amitai Etzioni 2014 Transparency is Overrated
The secrecy generally associated with nontraditional processes can facilitate lawmaking. Closed-door sessions have certain advantages over public meetings. For example, they enable Members to raise creative or “trial balloon” ideas without worry of public condemnation from partisan commentators for subverting party principles. A congressional aide said, “Regular order is too messy and it’s covered instantly in the media and it can create lawmaking problems,” such as the disintegration of Member support for a measure. In contrast, the presumption embedded in the “regular order” is the formal requirement for transparency during committee and floor proceedings. Consider that C-SPAN (the Cable Satellite Public Affairs Network) provides coverage of numerous committee sessions and virtually all floor (gavel to gavel) proceedings. Today’s 24/7 media environment is replete with journalists, analysts, and lobbyists who monitor and publicize Capitol Hill proceedings. Nearly 100 years ago, a House lawmaker made an observation about legislative secrecy that remains relevant to this day: “Behind closed doors compromise is possible; before spectators it is difficult.” Recall from history, the many compromises reached during closed door proceedings of the Constitutional Convention of 1787.Walter Oleszek 2020 The “Regular Order”: A Perspective
Given the Senate’s difficulty in creating conference committees, the two chambers turned to the exchange of amendment process to resolve their bicameral differences. This change has important consequences. For example, it strengthens the hand of the top House and Senate party leaders and places them in the “driver’s seat” in negotiating bicameral agreements. They meet in secret, along with other invited participants, to devise agreements acceptable to each chamber. Walter Oleszek 2020 The “Regular Order”: A Perspective
There is, moreover, another way in which the changes of recent years have jeopardized deliberation within Congress. Congressmen are now much more accountable for their actions. There is less they can do in secret. Nearly all committee markup sessions and conference committee meetings are now open to public scrutiny. Votes within committees must be recorded in ways not required a decade ago. The institution of the recorded teller vote on the House floor has reduced the likelihood that important decisions will be made without a record of each congressman’s vote. Largely overlooked, however, in this drive for accountability has been the effect on deliberation. Reasoning on the merits of public policy is not the same thing as registering constituent opinion at each stage of the legislative process. Deliberation requires both some measure of independent judgment by the legislator and a degree of flexibility in the decision-making process that allows for evolving opinion and changes of mind. This is particularly difficult if the public is looking over the legislator’s shoulder at each step in the process. Joseph Bessette 1982 Is Congress A Deliberative Body?
In reality, transparency allows interest groups with different constituencies across the Atlantic to create transnational alliances and dominate the negotiating process.Fernanda Nicola 2015 The Paradox of Transparency
The recent claims towards greater transparency in the EU are the result of pressures by businesses not being able to access initial drafts of legislation made by the EU Commission and presented to the Parliament and Council under the primary legislative procedure. In addition, US industry argued they were unable to make comments on secondary regulation, and received individual feedback through obscure regulatory processes in Brussels. More interestingly, this participatory limitation has been portrayed as a lack of transparency rather than an attempt to limit the influence of lobbies in Brussels.Fernanda Nicola 2015 The Paradox of Transparency
Among politicians and policy-makers it is almost universally assumed that more transparency in government is better. Until now, philosophers have almost completely ignored the topic of transparency, and when it is discussed there seems to be an assumption (shared with politicians and policy-makers) that increased transparency is a good thing, which results in no serious attempt to justify it. In this book Brian Kogelmann shows that the standard narrative is false and that many arguments in defence of transparency are weak. He offers a comprehensive philosophical analysis of transparency in government, examining both abstract normative defences of transparency, and transparency's role in the theory of institutional design. His book shows that even when the arguments in favour of transparency are compelling, the costs associated with it are just as forceful as the original arguments themselves, and that strong arguments can be made in defence of more opaque institutions.Brian Kogelmann 2021 Secret Government: The Pathologies of Publicity
Visible legislative operations, for example, have had repercussions that some observers find disturbing. For one thing, there is little if any persuasive evidence that citizens, in fact, do pay greater attention to Congress. For another, with committee proceedings and voting now matters of public record, lawmakers can no longer hide behind closed doors and unrecorded votes; they must act in the open. With constituents and campaign contributors watching, they must take care to protect their electoral flanks. As single-issue groups and PACs become more numerous and more forceful, sitting legislators may be less willing to risk offending any potentially decisive electoral force. Prudence dictates caution, and lawmakers may feel obliged to resist party or presidential calls for support. Where previously members could help out undetected, in the quiet of the committee room or on a standing or teller vote on the floor, at present there are dangers in doing so. The observer, more likely a group than a citizen, has greater influence in the more public setting of contemporary congressional politics. Members may be loath to act at all, preferring to entrench themselves electorally by being ombudsmen, by claiming credit for serving the district, or by limiting their policy making to “position taking,” choosing sides on substantive questions only when it is safe to do so or obfuscating their stands to minimize the risk of being caught on the wrong side of a policy issue that turns out to be controversial.Leroy N. Rieselbach 1982 Is Congress A Deliberative Body?
A variety of post-Watergate reforms opened most congressional committee meetings to the public, while also increasing the power of subcommittees. As the power that once was concentrated in each party's leadership became more diffuse, opportunities to directly lobby more members increased. Many new lobbyist groups were created, and others became even more powerful.Chuck McCutcheon 2014 Regulating Lobbying
There is no reason to think that the information emanating from the political environment will be unbiased or naturally lead members to support Pareto-improving reforms.Sarah Binder 2006 Governing in a Polarized Age
Simply making information available is not sufficient to achieve transparency. Large amounts of raw information in the public domain may breed opacity rather than transparency.Transparency Initiative 2016 website
And perhaps most important, the partisan character of amending activity changed suddenly with the advent of recorded electronic voting. With new voting procedures in the 1970s, [the minority party] could force [the majority party] to go on the record, often repeatedly, on divisive amendments. [The minority] actively sought ways to challenge committee products, raise ideologically charged issues, and force recorded votes… in order to compel [the majority] to take politically dangerous public positions. The effect, quite naturally, was to heighten the personal and partisan conflict on the floor.Steven Smith 1989 Call to Order
After a few experiments with open conferences in 1974, the House and Senate adopted identical rules requiring conference meetings to be open to the public…The House went a step further in 1977 when it required that the House itself must approve a motion to close a conference’s meetings…As a result, members, lobbyists, journalists, and others may observe most formal sessions of most conferences.Steven Smith 1989 Call to Order
The budget resolution was the first bill of genuinely national import to come to the floor after the cameras were turned on. To Speaker O’Neill’s chagrin, the resolution faced forty-one first- and second-degree amendments and the debate stretched over three weeks, setting records for budget resolution debates in the House. O’Neill attributed the multitude of amendments to the presence of television cameras. There is little doubt that several amendments were offered for symbolic purposes… The effects on amending activity of televised sessions, which began in March 1979, were never given a chance to materialize fully. Beginning in late 1979, the shift to more restrictive special rules for major bills prevented the members from fully exploiting the opportunities created by House television.Steven Smith 1989 Call to Order
Note: Smith claims, and it seems evident, that the massive rise of restrictive special rules and closed rules (two dangerous and anti-democratic turns of the mid-late 1970s) were driven by the rise of 1970 transparency.
On many vital issues, such as civil rights, policy outcomes were controlled by a conservative majority or at least a sizable obstructionist conservative minority. The conservative coalition also controlled decisions on several key committees and so was in a position to block committee action on legislation important to many Democratic liberals. Norms of committee deference and apprenticeship served to reinforce the power of the conservative oligarchy. For his part, [Lyndon B.] Johnson attempted to avoid open intraparty splits by refusing to bring up highly divisive legislation to the floor until he had the votes, and even then he worked to avoid amendments and recorded votes on which party factionalism would surface. Thus, much to the dismay of some liberal Democrats, Johnson’s deliberate strategy reduced the number of controversial bills brought to the floor, the number of filibusters, and the volume of amending activity.Steven Smith 1989 Call to Order
Note: What Smith is saying here, is that even before the Legislative Reorganization Act of 1970 there was a conscious effort by some to avoid divisive roll call votes. And so, to pass the civil rights bills and avoid partisan pressures, Johnson increased the level of secrecy.
But anonymous publication has been an essential feature of American democracy since its beginning. It has long allowed vulnerable voices to participate in public politics and speak truth to power. Indeed, anonymous debate was at the center of the revolutionary politics that led to American independence, the U.S. Constitution and the Bill of Rights, which enshrined the press freedoms that continue to protect anonymous speech today. In the late 18th century, pseudonyms and anonymous sources filled the pages of newspapers. In fact, some of the most prominent Founding Fathers regularly used the shield of pseudonyms in political essays during the era of the American Revolution: Thomas Paine, John Dickinson, Alexander Hamilton, Arthur Lee, John Jay, Benjamin Franklin, Thomas Jefferson and James Madison. Influential texts such as “Common Sense,” the Federalist essays and the “Letters from a Farmer in Pennsylvania” essays were all published without an author's byline.Jordan E. Taylor 2018 Anonymous criticism helped make America great
Note: Madison and Hamilton wrote the Constitution, Federalist Papers, Bill of Rights and even their nullification acts under the shelter of anonymity
All Congress used to be “secret.” When a piece of legislation receives a lot of coverage, that coverage is likely to be tilted in a negative direction. It’s simply not possible to have a bill that makes any kind of meaningful changes that doesn’t generate some complaints — either from people who don’t like the changes or else from people who think the changes don’t go far enough...the main thing to remember is that in the pre-internet era, Secret Congress was the norm — there just wasn’t that much national news coverage (22 minutes per night on network television), and a lot of that coverage wasn’t political. People got their information through locally focused outlets that mostly weren’t in very competitive markets, so you’d get stories about interesting scandals but not a lot of gripping white-knuckle coverage of actual legislation. That didn’t mean members would always reach agreements on things, but it did mean that if they wanted to reach an agreement, they could do so in relative obscurity and then announce it to the world...The news flow you’re exposed to is very disproportionately negative, both because negative stories are more likely to be written but also because the people who you follow on social media are more likely to share them, and also because you yourself are frankly more likely to click on them.Matthew Yglesias 2022 Secret Congress delivers more good news on clean water
Note: Yglesias is oddly missing a lot of historical context on the benefits of secrecy. So he kind of gets it, but without all the proper backdrop, he is missing the full power of his ideas. James D'Angelo respond to him, addressing some of this issue, here in this tweet. Secrecy appears to be essential to climate and environmental legislation.
As one author noted in 1764, if essayists were forced to print their names, “The Cause of Liberty would often be left to suffer” because they would have made themselves vulnerable to the “Clamour of Party, or the Resentment of Power.” This applied to many of those who argued against the ratification of the Constitution in 1787 and 1788 and against Publius. Despite pressure to reveal their names, they used pseudonyms to protect themselves. In that polarized climate, more than one writer suggested that it was “unsafe to be known to oppose” the proposed Constitution, so true anonymity was necessary to participate in politics.Jordan E. Taylor 2018 Anonymous criticism helped make America great
Note: Madison and Hamilton wrote the Constitution, Federalist Papers, Bill of Rights and even their nullification acts under the shelter of anonymity
In the post-Watergate atmosphere, almost no congressman wanted to go on record as opposing open decision making in the federal government. A vote against government in the sunshine could become a centerpiece of a challenger’s campaign in 1976. [And] a vote against sunshine laws would lead to… hostile newspaper and television editorials. The media, by its very nature, is strongly supportive of open meetings in government. Thus, almost all members of Congress voted for sunshine bills, which passed 86-0 in the Senate in November 1975 and 390-5 in the House in July 1976.Andrew S. McFarland 1984 Lobbying in the Public Interest (Common Cause)
If reverse FOIA effectively shrinks the Act’s disclosure mandate in an industryprotective manner, a late-1990s revision expands it toward the same end. The Shelby Amendment (named after its Senate sponsor) provides that FOIA requesters may access “all data produced” by private entities that receive federal research grants – but only when those entities are universities and other nonprofits, not when they are similarly situated for-profit firms. Scholars have suggested that the goal of this amendment, which was championed by the tobacco lobby and the Chamber of Commerce, was to hamstring the EPA by letting critics inspect environmental “scientists’ work down to the smallest detail, giving them myriad new opportunities to discredit studies’ assumptions, methods of analysis, and conclusions, fairly or not.”David Pozen 2017 Freedom of Information Beyond the Freedom of Information Act (Climate)
Congress’s refusal to discriminate among different classes of FOIA requesters except at the margins is not as “egalitarian” as it appears, but rather tilts the production of information toward business interests. And Congress’s refusal to modify the FOIA entitlement has led to a steady decay in its worth to everyone else...FOIA can also make it more difficult for agencies to work with private parties on a cooperative basis. As the initial version of the Act began to move through Congress, some agencies complained that it would increase their contracting and procurement costs by revealing what they were willing to accept or expend in contract negotiations and other transactions.David Pozen 2017 Freedom of Information Beyond the Freedom of Information Act
Obfuscation is thus compatible with omitting information, transmitting information beyond the possibility of using it or, clearly, transmitting false information.Brosio 2007 The Economics of Transparency in Politics
Congress can now be monitored and influenced as never before. As a result, lobbies, which do most of the monitoring and influencing, have gained power compared with the target of their efforts – the government.Zakaria 2003 Future of Freedom
The theory was that many lobby groups would profit from open sessions and votes… “We got a big lobby effort going,” Conlon said “But it is what you would call a ‘public interest lobby.’ They understand that this bill, with our revisions, is really going to revolutionize this place”… “Now just one minute,” interjected peppery Wayne Hays (D.Ohio). “If you want to write up a bill with a lobbyist sitting at every Member’s elbow, some of you… are going to have a rude awakening” Bibby & Davidson 1972 On Capitol Hill
Note: Richard Conlon was a principal 1970 advocate of congressional transparency, and it was he (along with the support of lobbyists) who focused the push for the 1970 Legislative Reorganization Act (LRA) and its amendments focusing on increased transparency of lawmaker’s votes.
The view is widespread that more transparency in institutions leads to better outcomes. That, however, is surely too enthusiastic a view. To illustrate, a sine qua non of popular democracy is the secret ballot — the suppression of transparency. To appreciate one of the central virtues of secret balloting, consider the fact that in a number of organizations, the leadership, for obvious reasons, insists that the preferences and opinions of the rank and file be revealed through a hand count instead of a secret ballot. Transparency, in that case, is a way of controlling the membership.Albert Breton 2007 The Economics of Transparency in Politics
Whatever happened to the Class of 1974? That was the 75 freshman Democrats elected to the House of Representatives in the post-Watergate era. They helped to weaken the time-honored seniority system in Congress, and generally fostered a climate that has resulted in a less authoritarian, more open, legislative process. Many of those 1974 freshmen are still here, having acquired a few gray hairs and several years of seniority. And now, several of the young Turks of yester-year are beginning to wonder if the processes of the House have become too open to the point of near-chaos. Louis Peck 1979 ‘Inviting anarchy’ into the House
Sunshine rules, which open once-secret meetings to public scrutiny, were mentioned - although substantially less frequently - by our respondents as having similar effects: creating new opportunities for influence [lobbying and pressure groups]… Kay Lehman Schlozman & John T. Tierney 1983 More of the Same: Pressure Group Activity
In a teller vote representatives file quickly past two tellers and vote “aye” or “nay,” without any record of who voted which way. The device originated in the British House of Commons and has been used on this side of the Atlantic from the early days of the Republic. It is used only on amendments and only when the House is sitting as a Committee of the Whole. But the House almost always sits as a Committee of the Whole for serious consideration of legislation, and so the most significant votes have often been cast in unrecorded teller votes. The technique has been attractive because it is quick and simple and allows members to vote without worrying about public repercussions.John Bibby & Roger Davidson 1972 On Capitol Hill
There are cases in which all the information about a policy is freely available to all, and even fully reported in the media, and, nonetheless, the policy smacks of opacity – or, rather here, of obfuscation. Obfuscation works, not by hiding anything, but in the way the policy and especially its objectives are formulated or framed.Salmoon & Wolfelsperger 2007 The Economics of Transparency in Politics
While it is frustrating to stand outside the committee room trying to guess what is going on inside, he thinks everyone benefits in the long run. ‘In a public session there are so many different interest groups eyeballing the congressmen that they’re so torn they end up doing something nonsensical… that’s how we got where we are.’Harold Scoggins Jr. – Lobbyist for the Oil Industry Fessler – Rewriting Tax Code (CQ Quarterly 1985)
It’s a real dilemma for liberal reformers. When you look at recent tax bills, the best ones have come out of closed sessions. You take what you can get and hope someday you can get a good bill at an open meeting.Jeff Drumtra – Ralph Nader representative Fessler – Rewriting Tax Code (CQ Quarterly 1985)
The Constitution makes clear that the Senate may convict an impeached president with the “concurrence of two-thirds of the Members present.” But it is silent as to the exact procedure that the Senate should follow at the trial’s end to determine whether two-thirds concur.
Ideally, the Senate should abandon the public, roll-call procedure that it adopted in 1868 for President Andrew Johnson’s trial and instead require the senators to vote anonymously at trial’s end to acquit or convict.
The idea might seem anachronistic in the age of C-SPAN and sunshine laws, but it is well in line with the principle that “the arguments and votes of jurors… are secrets, protected from disclosure unless the privilege is waived,” a notion that the Supreme Court once called an “immemorial tradition.”
The good thinking behind this tradition is the desire for verdicts that are uninfluenced by bribery, harassment and blackmail. Of course, the risk of improper influence is especially great when the president is on trial, as President Andrew Johnson’s impeachment trial demonstrated.
The Johnson administration bribed senators in backroom dealings with the promise of appointing a secretary of war of their liking. Johnson’s opponents pressured the senators with threats ranging from political ostracism to assassination. In the end, Johnson’s opponents made good on at least one threat: None of the Republicans who voted for acquittal was ever re-elected to the Senate.
Who doubts that the pressures are less severe in 1999? Some argue that such pressures are appropriate because the process is political by design. After all, the delegates to the Constitutional Convention chose the Senate rather than the Supreme Court as the trier of presidential impeachments.
This view of history mistakenly assumes that today’s Senate is the same Senate that the framers envisioned. It is not, and the record of the debate on September 8, 1787, makes that clear. The delegates who favored the Senate as the place of trial thought the Supreme Court would be more biased and corruptible than the Senate.
Today most Americans would say that those delegates got it backwards, but that viewpoint says more about how much the Senate has changed than it says about the framers’ wisdom. When the framers chose the Senate to be the trier of presidential impeachments, they did not expect senators to be popularly elected, they did not foresee the ascendance of powerful political parties, and they may well have expected secrecy to be the norm in the Senate, as it was during its first six years.
Anonymous voting by legislatures is hardly unprecedented. Parliaments in many countries vote anonymously for the unseating of a member. In our own country, when no presidential candidate received a majority of the votes in 1800 and 1824, the House of Representatives voted by secret ballot to elect our president (and thus we got Presidents Thomas Jefferson and John Quincy Adams).
The real question at this juncture is whether the Senate has the political will to shield the senators from public opinion, an act which might appear undemocratic. Alexander Hamilton didn’t see it that way. Writing in Federalist Paper No. 65, Hamilton suggested that in impeachment matters, the House of Representatives would represent public opinion, but the Senate trial would be independent of and insulated from public opinion.
Hamilton’s view makes sense even today if we remember the basic civics lesson about the Senate. Because each state has two votes, the Senate by design does not accurately reflect national public opinion. Instead, it favors public opinion in small states.
In legislative matters, this is not so troubling because the vast power that small states wield in the Senate is checked by the House of Representatives and the President’s veto. But in an impeachment trial, the verdict of the senators is final, so a public, on-the-record vote would not subject the senators to national public opinion so much as it would implement the will of public opinion in the smaller states, unchecked by a more representative body.
As a rule, I strongly believe that accountability means better government. In the exceptional case of a Senate impeachment trial, however, accountability doesn’t accomplish the good that it normally does. The reason is simple: the fact that a public Senate vote will favor opinion in the small states unchecked by proportionally representative institutions means that an on-the-record vote may well produce a result inconsistent with national public opinion and the national interest.
Indeed, as it stands now, public opinion in Maine, Rhode Island and Vermont will have three times the influence over the president’s fate as public opinion in New York, even though New York has six times the combined population of those states. In the most extreme case, if the only Americans who favored conviction were a slim majority of citizens in the 34 least populous states, and those states’ senators voted the will of those majorities, then the President would be expelled at the behest of 16 percent of Americans, with 84 percent of Americans supporting acquittal!
The question we ought to ask is not whether the Senate should be accountable, but whether the Senate vote will better reflect the national interest fairly and justly in an open environment or in a closed environment. It just might turn out that a public Senate vote will produce a verdict inconsistent with the national interest. That is exactly what the nationally-minded Alexander Hamilton had in mind when he defended the Senate as the trier of presidential impeachments in Federalist Paper No. 65: a body that would be less accountable to public opinion in the several states.
With the changes in the Senate since its inception in 1787, the best way to accomplish that is through secret ballot.
Steve Tidrick 1999 (Harvard Law) Senate Should Vote in Secret
Note: A number of people speculate about whether Article I, Section 5 permits a secret ballot vote in Congress, and if so for how long. Well, surprisingly the constitutional text, though dated, is fairly clear and wildly permissive of secrecy. Article I states (in its entirety): Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the yeas and nays of the Members of either House on any question, shall, at the desire of one fifth of those present be entered on the journal. ------ The final phrase is key in that it calls for the printing of the yeas and the nays - which in the Framers’ time was not a printing of the names of the members who voted and their votes, but instead just the final counts – how many people voted for each side. So while this clause requires that the votes shall be printed, it does not require names to be attached to each vote. Further the first phrase allows for Congress to hold the Journal until they decide to publish it, which even the Framers’ day and age could mean up to fifty years of delay (as in the case of Madison publishing the notes of the 1787 convention in 1826.
“We ought to be willing to look the lobbyists in the eyes and make those decisions right out there in public.’” But: “‘In at least some circumstances, you probably get better legislation from closed sessions. Clearly in the type of atmosphere we worked in recently we had to enact some tax provisions that people don’t like, and I think it’s easier to do that in closed session.’ ‘With a closed mark up you can always say to lobbyists or constituents that you fought like a tiger for their position and asked for a record vote, but not enough members raised their hands. Members almost feel obligated to demand a record vote in public, and then you have members voting in a way they don’t really want.’ Fessler 1985 Rewriting Tax Code Behind Closed Doors
It is not hard to imagine what happened: The substantive conversations that were once held in the House and Senate chambers were moved to the cloakrooms, or at least to private deliberations held away from C-SPAN’s cameras. At one point the franker debates were still held in committee hearings – though eventually even many of those were put on C-SPAN as well. The real negotiations began to be held in leadership offices. Rather than expand access to decision-making to a wider range of viewers, C-SPAN has in fact done the opposite: It has inadvertently pushed real deliberation further into the shadows by centralizing power among a smaller group of leaders.Jason Grumet 2014 The Dark Side of Sunlight (City of Rivals)
Even if we wanted to compromise, the question was how. Budget negotiations could not take place in the normal legislative process, not with the television cameras on, not with every proposal subject to attack. The negotiations had to be secret, giving the President and Congress a chance to hammer out an agreement before the interest groups could move. It had to be outside normal procedures.Paul Light 1985 Artful Work: The Politics of Social Security Reform
Moreover, with every word on the record, it is more difficult to sit down and negotiate on most issues. As one reaction to Watergate and the Vietnam War, Congress opened many of its once secret hiding places. By bringing “sunshine” into the legislative process, many reformers hoped to make Congress more accountable. There would be no more smoke-filled rooms. The only problem was that Congress and the President still needed an occasional hiding place, particularly on dedistributive issues. Sunshine was a noble goal, generating greater public access, but it also put Congress on the spot. It was diificult to vote for spending cuts or tax increases with every interest group watching. Paul Light 1995 Still Artful Work: The Continuing Politics of Social Security Reform
Following a decade of reform. Congress must now work in the sunshine. As Congress opened its workings to the public and interest groups, the smoke-filled rooms began to disappear. Unfortunately, so did many of the closed rooms that are so important to legislative action. Under the hot lights of television, with every word in a transcript and every vote on the record, members of Congress became less willing to take a stand on painful issues. And with so many open meetings, leaders had fewer chances to sit down and talk. No one wanted to make the first move, especially if it might become an issue in the next campaign.Paul Light 1995 Still Artful Work: The Continuing Politics of Social Security Reform
In many respects, conference committees were the very first secret negotiating groups in American history. They were not mentioned in the Constitution but quickly became the central tool for resolving House-Senate differences. Because conference committees were originally closed to all but a handful of members, they also became a device for stopping important bills and making secret deals. Though conference committees were opened to the public in 1974, they still provided rare opportunities for private negotiation. They still had closed-door caucuses and back-room meetings. At least for social security in the early 1980s, conferences offered some protection from the sunshine.Paul Light 1995 Still Artful Work: The Continuing Politics of Social Security Reform
Although the commission also agreed on a host of smaller recommendations – to remove social security from the unified federal budget, create a stabilizer in the event of future crises, add two public members to the board of trustees that governs social security, and eliminate windfall benefits for certain beneficiaries – it was unable to reach a compromise on solving the problem. Though it tried mightily in the coming weeks to reach accommodation on a package of alternatives, its primary achievement was in setting the targets for other negotiators. This is not to denigrate the commission’s work, for everything in the subsequent legislation flowed from those targets, not to mention the commission’s staff work. Rather, the politics of social security reform required even greater protection from the sunshine; if not the old smoke-filled rooms, then at least the opportunity to lay all the cards on the table without public inspection. Paul Light 1995 Still Artful Work: The Continuing Politics of Social Security Reform
[The secret commission “The Gang of Nine”] had turned back the clock on Congress, providing some shade from the sunshine. By giving the leaders a chance to lead, by putting politics back into politics, the commission had provided the political cover needed for compromise.Paul Light 1985 Artful Work: The Politics of Social Security Reform
By hiding the tough choices form the public and interest groups, Congress and the President could finally talk. Since bargaining rarely starts with the last, best offer, the intricate process of give and take had to be protected from endless political sniping. Democrats and Republicans had to be able to make offers and counteroffers without worrying about the morning headlines.
In many ways, the secret process helped diffuse any blame for the final package. It was difficult to tell who was responsible for what. Who was to blame for taxation of benefits? For the COLA cuts? For the increased retirement age? Most of the package could be blamed on a secret gang or a long-ded National Commission.
Though congressional sunshine has many advantages – more accountability, less hidden influence, fewer abuses of power, more access for the unrepresented – it also brings problems, particularly on dedistributive issues. Leadership is clearly more difficult in an open congressional system. There are more players fighting for attention, more delays in the legislative process, and more pressure points for interest groups. As Congress faces more and more dedistributive choices, negotiating gangs may well become the standard device for resolving party differences outside the public spotlight.Paul Light 1985 Artful Work: The Politics of Social Security Reform
Perfect secrecy and immediate despatch are sometimes requisite… So often and so essentially have we heretofore suffered, from the want of secrecy and despatch, that the constitution would have been inexcusably defective, if no attention had been paid to those objects… Thus we see, that the constitution provides that our negotiations for treaties shall have every advantage which can be derived from talents, information, integrity, and deliberate investigation, on the one hand, and from secrecy and despatch, on the other.John Jay 1788 The Federalist Papers
Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice, without constraint. Has it been found that bodies of men act with more rectitude or greater disinterestedness than individuals? The contrary of this has been inferred by all accurate observers of the conduct of mankind; and the inference is founded upon obvious reasons. Regard to reputation, has a less active influence, when the infamy of a bad action is to be divided among a number, than when it is to fall singly upon one. A spirit of faction, which is apt to mingle its poison in the deliberations of all bodies of men, will often hurry the persons, of whom they are composed, into improprieties and excesses, for which they would blush in a private capacity.Alexander Hamilton 1788 The Federalist Papers #15
We do not, however, embrace transparency in all aspects of government. Citizens vote by secret ballot to protect their votes from outside influence. The Federal Reserve meets in secret to avoid causing turmoil in financial markets. Most international diplomacy is conducted in secret...Kogelman claims that a certain amount of opacity in government is necessary to realize political equality.Astral Codex 2023 Book Review: Secret Government
If legislators voted by secret ballot, this resolution mechanism would cease to function. Say that a lobbyist makes a contribution to a legislator hoping for an amendment to be inserted into a bill. The legislator can promise up and down to vote in favor of that amendment, but will have no way to actually prove it. With no way to verify that the exchange took place, the lobbyist would soon give up.Astral Codex 2023 Book Review: Secret Government
Critics would argue that enhanced transparency in prisons could actually be harmful. Michael Campbell and Heather Schoenfeld argue that the current mass incarceration boom was due in part to the politicization of crime within a federal-state incentive loop. Voters across the nation passed variations of “three strikes” laws and state legislatures supported mandatory sentences. That politicization fostered special interest groups and enhanced the groups’ influence on crime legislation. In a national poll of voters for their revenue and reduction preferences, 48% supported reducing funding for state prisons over raising property or business taxes. Defendants and prisoners are not necessarily the most sympathetic population and perhaps greater transparency in prison operations would actually lead to worse prison conditions.Andrea C. Armstrong 2018 No Prisoner Left Behind: Enhancing Transparency of Penal Institutions
Part of the reason the administration of President George W. Bush and those of other governments are able to put the clamps on such information is that transparency is not always good. If people do not agree on what constitutes good or bad behavior by a government or corporation, revealing that behavior may just spark conflicts over competing views of the public good. Some institutional secrets are legitimately worth protecting – there is no inherent right for one corporation to know its rival’s trade secrets, and military disclosure can allow adversaries to find weaknesses and locate targets. Misinterpretation, accidental or deliberate, can transform disclosure from an opportunity for public accountability to an exercise in scapegoating.Ann Florini 2003 The Coming Democracy
Public meetings under the Act often lack meaningful substantive exchange of ideas and real collective deliberation on issues being decided. Among the reasons given for the inhibiting effect of public meetings on collective decisionmaking are the following: concern that providing initial deliberative views publicly, without sufficient thought and information, may harm the public interest by irresponsibly introducing uncertainty or confusion to industry or the general public; a desire on the part of members to speak with a uniform voice on matters of particular importance or to develop negotiating strategies which might be thwarted if debated publicly; reluctance of an agency member to embarrass another agency member, or to embarrass himself, through inadvertent, argumentative, or exaggerated statements; concern that an agency member’s statements may be used against the agency in subsequent litigation, or misinterpreted or misunderstood by the public or the press, as for example, when the agency member is testing a position by “playing devil’s advocate” or merely “thinking out loud” ; and concerns that a member’s statements may affect financial markets. In addition, the Committee has received extensive and credible testimony that the restrictions imposed by the Act have had the effective of not only diminishing discussions on the merits of issues before agencies, but also preventing debate concerning agency priorities and the establishment of agency agendas, even though such discussions of a preliminary nature may not technically constitute a “meeting” otherwise required to be held in public under the Act. - ACUS (Administrative Conference of the United States) ACUS 1995 Reform of the Government in Sunshine Act
Progressive reformers, whether Democratic or Republican, have been calling for more “open and democratic” government since at least the 1960s. In fact, the roots of such reform date to Woodrow Wilson and probably even to the Anti-Federalist concern for more simple, direct democracy. Recently, The Washington Post’s Ezra Klein cited as one of “the 13 reasons Washington is failing,” the idea that “too much sunshine can burn” saying “sometimes, it’s easier to resolve disputes in private.” Madison, of course, would concur. The Constitutional Convention succeeded, in part, because the fifty-five delegates met behind closed doors, under strict confidentiality rules. As witness Madison’s Notes of Debates in the Federal Convention, published only after his death in 1836, delegates were able to repeatedly speak their minds and change their minds across the long summer of 1787. Madison clearly did not think the cure to the ills of democracy is more democracy. He created republican, that is, representative, institutions designed to “refine and enlarge the public views.” Viewing the sausage-making of the legislative process, especially under the unblinking stare of the media, has probably not increased citizen trust in government. The decline in trust of government since the 1960s is coincident with transparency reforms. William F. Connelly 2013 Partisan, Polarized, Yet Not Dysfunctional?
Should we have a secret ballot for impeachment. Would a secret vote in the Senate have led to Trump’s conviction? There’s no way to know what might have happened had the Senate voted in secret. It’s been widely asserted that a clique of Republican senators, many still publicly enraged at Trump over the January 6 attack, wanted to convict but didn’t do so out of fear—not only political trepidation but anxiety over physical reprisals after the near-death experience of the Capitol attack. If 10 additional Republicans had joined the 57 Senators (all 50 Democrats, including Joe Manchin of West Virginia, and seven Republicans) who voted “Guilty,” Trump would have been impeached and forbidden from running again for federal office. Democratic Senator Ed Markey of Massachusetts, who publicly advocated for a secret ballot at the time, has speculated that more Republicans would have joined the vote. Republican Senator Jeff Flake of Arizona, who was out of office by then, has suggested as many as 35 Republicans would have offed Trump. In the House, Liz Cheney, the Wyoming Republican, has said that she thought a majority of Republicans would have joined her and ten other GOP Conference members to impeach Trump were there a secret ballot.Matthew Cooper 2022 Should Impeachment Votes Be Cast in Secret?
The whole point of the supercommittee is that it works outside the ordinary process -- to my mind, that's a feature not a bug. By shielding the negotiators from scrutiny, they're spared from having to posture for their respective bases, and will have room to offer concessions they wouldn't dream of making publicly. Personally, I'm skeptical that they'll succeed (pressure from outside will diminish; it won't disappear). But I'm not worried about shady dealings, a la Cheney and oil companies, because the deliberations will focus on removing, rather than giving away, tax breaks, loopholes, and favors. That's incredibly hard to do in the current political climate. If you want the negotiators to succeed in striking a deal where both sides sacrifice something, a private supercommittee is probably the best bet. And if they do strike a deal and it's terrible, there will be ample opportunity to press members of Congress to vote against it.Joshua Green 2011 Why Open Government Is Occasionally Undesirable
The solution? Anonymous Congress. With anonymous Congress, we can turn every tormented congressional leaders dream into reality. The premise is simple: members of the House and Senate are allowed, periodically, to vote completely anonymously.Ben Krauss 2024 The Take Bakery: Anonymous Congress
The American public generally valorizes representatives who publicly “votes their conscience.” But there are valid political reasons why many refuse to do so. Maybe there’s a special interest group breathing down their neck and threatening to fundraise for a primary challenger. Maybe their district is significantly conservative or liberal, and they just can’t be seen collaborating on bipartisan legislation. Maybe they can’t stomach taking an ideological stand that will jeopardize their regular appearance on Jesse Waters or Rachel Maddow’s show. Whatever the reason, I believe we can get the courageous and principled leadership we desperately crave, as long as they have the freedom to demonstrate that legislative bravery in private.Ben Krauss 2024 The Take Bakery: Anonymous Congress
Get rid of television. Yes, that means less “transparency” in the confirmation process — but it may also salvage what little dignity remains in one of the Senate’s most important constitutional duties.Joe Ferullo 2022 Eliminate television coverage from Supreme Court
Gridlock in the American Congress has been exacerbated by the “sunshine laws,” that opened up committee deliberation to the public, but also to lobbyists and other special interests. Adding openness in this instance has not increased legitimacy.Cathie Jo Martin 2013 Conditions for Successful Negotiation
Forcing (transparent/public) votes on divisive “hot-button” issues provides campaign ammunition to party colleagues and supporters back home.Walter Oleszek 2015 Congressional Procedures and the Policy Process
Even proponents of openness admit that members can reach compromises and make tough decisions more easily when they are away from the glare of lobbyists sitting in the audience.Walter Oleszek 2015 Congressional Procedures and the Policy Process
Senators may over several days “cast back-to-back votes on a dizzying array of dozens of amendments,” many designed to provide campaign ammunition (so-called gotcha amendments) for the next election.Walter Oleszek 2015 Congressional Procedures and the Policy Process
The fact that members are on record much more often now than before has strengthened adversary democracy by making legislators’ behavior more visible to constituents. On the other hand, the interpretation of members’ votes is not always easy and can be misleading, even for those more attentive to the process than the typical citizen is. Representatives may vote against a measure in the form in which it is presented even though they favor the general concept. Or they may oppose particular parts of a measure but vote for it because they think on balance it merits support. They may vote on the basis of procedural considerations – for example, to oppose a closed rule – even though they favor the substance of the legislation that rule pertains to. They may oppose abortions personally but not want to amend the Constitution to ban them. In short, members can appear to stand on both sides of an issue, either as a result of careful thought or in order to obscure their position for political reasons, such as an effort to placate a divided constituency. While recorded votes facilitate citizens’ ability to hold representatives accountable, these possibilities suggest caution in doing so. The inattention and ignorance of most constituents, however, mean that such caution will rarely be exercised by most citizens. Because of limited public attention, members are sometimes confronted with a choice of voting in a way they consider best but would have a hard time explaining, or voting in a way that is easier to explain even though they would prefer to be on the other side. David Vogler & Sidney Waldman 1985 Congress and Democracy (Strategic Voting)
Roll-call votes are typically not requested randomly by a disinterested party; they are selected by a purposive actor (such as a party leader) with a vested interest in what the vote will reveal about legislative behavior to a particular audience. Thus, we cannot be confident that we can infer behavior on the unobserved (non-roll-call) votes from the roll- call votes. This disjunct has negative implications for the use of roll- call votes to estimate legislators’ ideal points, the dimensionality of the policy space, and party influence on legislative voting.Carrubba, Gabel & Hug 2008 Legislative Voting Behavior
Each committee first attempted to write a reform bill in public but soon discovered that sunshine was incompatible with reform.Arnold 1990 The Logic of Congressional Action
How can citizens control legislators when most citizens pay scant attention to public affairs? Why should legislators worry about citizens’ preferences when they know most citizens are not really watching them?Douglas Arnold 1993 Can Inattentive Citizens Control Representatives?
A House rules change in 1993 may have increased the chances that the discharge procedure would succeed – at least on high-visibility issues. Previously, names on a discharge petition – and thus the names of those who had not signed – were kept confidential until 218 was reached. The rules change specified that the list of who had signed would be public from the first signature, making it easier to pressure members to sign on hot-button issues.Barbara Sinclair 2006 Unorthodox Lawmaking
Sunshine rules instituted in the mid-1970s require that conference committee meetings be open to the public. However, because a public forum inhibits the hard bargaining that is often necessary, much negotiation takes place informally behind the scenes. To reach a compromise, members may need to retreat from positions they have advocated, often ones they have argued for strongly and ones with ardent interest group and constituency support; that is easier done behind closed doors.Barbara Sinclair 2006 Unorthodox Lawmaking
Greater transparency is not an unmitigated good. In all likelihood, the trend toward greater transparency will be at once positive and pernicious. More information about other societies may reveal conflicting values and interests as well as shared ones. More information about the military capabilities of other states may show vulnerability and encourage aggression by the strong against the weak. Greater transparency can highlight hostility and fuel vicious cycles of belligerent words and deeds. It can highlight widespread prejudice and hatred, encourage the victimization of out-groups and by showing broad acceptance of such behavior without repercussions, legitimize it. Greater transparency can undermine efforts at conflict resolution and, when conflicts do break out, it can discourage intervention by third parties. Transparency sometimes can make conflicts worse.Kristin M. Lord 2006 Perils and Promise of Global Transparency
Greater transparency will not necessarily promote democracy and good governance… In some cases, more transparency may actually strengthen illiberal regimes and increase their legitimacy. To a large extent, the effects of transparency depend on what transparency reveals, who benefits, and how people interpret the information they receive in a more transparent global society. Transparency may reveal positive trends and an environment conducive to peace; but it may also reveal negative trends and an environment of suspicion and hate.Kristin M. Lord 2006 Perils and Promise of Global Transparency
Of the Committees that reported meeting 50 or more times during the 1960 session, House Ways and Means showed the highest secrecy percentage, 81 percent. The Committee, which has the responsibility of processing all tax measures introduced in Congress, spent much of its time working out a compromise bill providing health care for the aged. It also considered legislation extending certain excise taxes and providing an increase in the national debt limit and bills extending tax relief to companies making investments abroad and organizations engaged in lobbying. The Ways and Means Committee closed the doors to the press and public for 57 of 70 meetings during 1960.Congressional Quarteryl 1960 Congressional Secrecy Increases in 1960
The House Appropriations Committee, probably the busiest of all Congressional committees, traditionally holds all of its meetings in private and reports none of them. [It goes] over money requests in private because Chairman Clarence Cannon (D Mo.) believes they get more work done this way...Congressional Quarteryl 1960 Congressional Secrecy Increases in 1960
As we reformed politics, usually in the name of democracy, we made it less democratic and accountable in respects. The Founders closed the doors at the 1787 constitutional convention - as we had when it came to writing legislation to represent the public interest in the Senate - before we reformers opened them. It is often easier to represent the public interest in secret. The founders closed the doors and went one step farther. The delegates were pledged to secrecy.Adlai Stevenson 2016 The Black Book
Senators... retreated behind closed doors to draft legislation in mark up sessions and represent[ed] the public interest with impunity, as the founders did at the Constitutional Convention. We opened the doors. Senators then retreated to closed Conference Committee meetings to reconcile legislation passed by both Houses. [They] represent[ed] the common interest by removing concessions adopted in public for grateful supplicants and constituents, knowing they would disappear in secret. When their doors were opened, Senators had nowhere remaining to represent the public interest without fear of retribution from interest groups.Adlai Stevenson 2011 The Black Book
We opened up the legislative process, increased the staffing and, in redistributing power, broadly left it vulnerable to pressures at many more points from think tanks, industry, financial, and farm groups, environmentalists, gun control, and abortion advocates, religionists, and advocacy groups of all kinds. [All of these] proliferated to take advantage of reform and the mounting vulnerability of the politicians. The unintended results were due in part to the new mass media which took advantage of the reforms, [opting] to be adversarial and superficial instead of availing the public of its new access [via transparency] to political process and politicians, as we reformers had naively expected.Adlai Stevenson 2011 The Black Book
This Congress bears little resemblance to the Congress in which I served from 1970 to 1981. There was little partisanship. We divided over issues not along party lines. The regular order should be restored, cloture reformed. We held our "mark-up" sessions behind closed doors to write legislation line by line. When doors were opened to let in the “sunshine,” the lobbyists were let in – and the money.Adlai Stevenson 2019 Our political system needs an overhaul
Transparency is often viewed as sunlight, and people tend to reflexively agree that more is always better. More is not always better-sometimes more is just more. Occasionally there is an unintended dark side to transparency for its own sake. Clay Fuller 2019 American Leadership in the Age of Authoritarian Corruption
The negotiations for the health care bill were supporse to be televised on C-Span. The president [Obama] made that claim over and over again, and the negotiations were conducted behind closed doors (at least the negotiations between the Senate and the House).Ken Rudin 2010 Political Junkie
The secret ballot was known in the nineteenth century as the “Australian ballot” after South Australia and Victoria instituted it in 1856 to prevent citizens being intimidated into voting against their will. So it’s fitting that we take the Australian ballot further and use it to loose the bonds of careerist intimidation within our Parliament. I’d give any super-majority of the people’s chamber the power to compel a secret ballot of the other chamber(s) on the matter in question. In fact, a secret ballot isn’t unknown to Parliament today. The Speaker of the House and President of the Senate are elected by secret ballot, and that fact has changed outcomes.Nicholas Gruen 2017 Detoxing Democracy
Senator Roger Wicker from Mississippi came up with this idea on a Thursday to have all the Senate get together in the august old Senate chamber behind closed doors to try to hash this out on a Monday night. So they all came in from out of town. Around 6:30 they adjourned to old Senate chamber. They closed the doors. Reporters are just milling around outside for hours and hours while one by one the senators kind of have a vent session. They all get up and stand and say you just don't understand us. They talk it through. And then they emerge with a deal. And that deal had actually been cut over the weekend when Senator John McCain of Arizona pleaded with Senator Chuck Schumer of New York to come back to the table and step back from the nuclear brink. That deal was - there was one small face-saving measure that - the Republicans hate the National Labor Relations Board. They feel like the NLRB always tilts to the unions - which it kind of does. They wanted some kind of face-saving measure. They said withdraw President Obama’s - two of President Obama's NLRB - National Labor Relations Board - nominees. Give us two new ones. The twist was we don't care who those new two ones are. They could be - they could be put up by the unions. They could be as liberal or as in-your-face as the two guys that you're going to remove. Just give us two new nominees and we’ll give you all seven, carte blanche. That’s what they did.Jonathan Weissman (New York Times) 2013 As Summer Recess Looms, Congress Remains Inactive
In my book Data and Goliath, I write about the value of privacy. I talk about how it is essential for political liberty and justice, and for commercial fairness and equality. I talk about how it increases personal freedom and individual autonomy, and how the lack of it makes us all less secure. But this is probably the most important argument as to why society as a whole must protect privacy: it allows society to progress… People need the space to try alternate ways of living without risking arrest or social ostracization. People need to be able to read critiques of those norms without anyone’s knowledge, discuss them without their opinions being recorded, and write about their experiences without their names attached to their words. People need to be able to do things that others find distasteful, or even immoral. The minority needs protection from the tyranny of the majority. Privacy makes all of this possible. Privacy encourages social progress by giving the few room to experiment free from the watchful eye of the many. Even if you are not personally chilled by ubiquitous surveillance, the society you live in is, and the personal costs are unequivocal.Bruce Schneier 2018 target="_blank"Surveillance Kills Freedom by Limiting Experimentation
It’s always better in our industry to have transparency, we’re all the stronger for it.Conall McDevitt (Lobbyist) 2017 Hume Brophy
Throughout history there is scant (if any) evidence of lobbyists or powerful groups resisting transparency. But there is gobs of evidence that they embrace it.
Oft-times in order to get anything out it is necessary to compromise way below what the public stand of the member would be. To have than open to the public would greatly hamper, I am afraid, the successful reaching of a consensus by compromise which is the essence of the finalization of legislation.Sen. Mike Monroney (Oklahoma) 1967 Advocates of Openness
Note: This citation, from a member of Congress, takes place three years before Congress opened all its committees.
Socrates says he has often heard Charmides give excellent advice to public leaders in private conversation. Charmides replies that “a private conversation is a very different thing from a crowded debate.”I.F. Stone 1989 The Trial of Socrates
Note: This conversation comes from Xenophon and not Plato and it highlights Socrates' clear ignorance to the pressures of working in the sunlight. The conversation continues as follows. SOCRATES: “In your intercourse with public men. Whenever they take counsel with you, I find that you give excellent advice, and whenever they make a mistake, your criticism is sound.” CHARMIDES: “A private conversation is a very different thing from a crowded debate, Socrates.” SOCRATES: “But, you know, a man who is good at figures counts as well in a crowd as in solitude; and those who play the harp best in private excel no less in a crowd.” CHARMIDES “But surely you see that bashfulness and timidity come natural to a man, and affect him far more powerfully in the presence of a multitude than in private society?”
Once Bobby became Attorney General I had to really pour the whiskey in Senator Richard Russell because he had the votes to kill it. Vice President Johnson called and said, “Bobby, this will be the most humiliating defeat I, as Vice President, could suffer if I don’t have enough influence in the Senate to confirm the President’s nominee, even though it’s his brother.” So I took Senator Russell over to the Secretary of the Senate’s office and I really poured heavy drinks in him. I said, “Your best friend and my best friend is pleading with me to talk to you to see if you’ll let us have a voice vote.” Between my persuasion and the booze, he agreed. That’s the only way he was confirmed. He would have been defeated if there had been a roll-call vote. The Republicans and Southern Democrats had enough votes to defeat Bobby Kennedy to be Attorney General...But had it had a roll-call vote, Bobby Kennedy would have never been Attorney General. He would have been lucky to get 40 votes.Robert Bobby Baker 2009 Interview by Donald Ritchie
Note: This example highlights how differnt confirmations were just a few decades ago. Bobby Kennedy as contentious as a choice he was, was easily (and quietly) confirmed by voice vote. Today, the votes are public and fiercely debated along partisan lines.
C-SPAN didn’t just create a way for politicians to vault out of the sleepy back benches of the House. It also changed the way things worked within the chamber. The most effective legislators are not always the most telegenic, and Congress’s work is sometimes unsavory. As Jonathan Rauch, a senior fellow at the Brookings Institution, has written in The Atlantic, well-meaning reforms have in fact weakened some parts of the American political system. That includes greater transparency for legislation, of which C-SPAN is a part. “Congress functioned better and people were happier with it when it was less exposed to public view,” he told me in a recent interview.David Graham 2019 C-Span Isn’t all Good
Throughout the nineteenth century, the Senate routinely debated treaties and nominations in secret. House and Senate committees regularly convened in executive session, beyond public scrutiny.Donald Ritchie 1991 Press Gallery: Congress and the Washington Correspondents
But what if the conventional wisdom about C-SPAN is wrong, and the problem is not that too few people are watching it, but too many? What if C-SPAN is not an anachronism, but an author of today’s political chaos?David Graham 2019 C-Span Isn’t all Good
Demagoguery has always been with us. And television isn't the only medium that can elevate politicians and other leaders more interested in rousing passions and attracting eyeballs than in doing good or acting as public servants; talk radio and social media do a pretty good job as well. But television sits at the center of our public life to a unique degree, and not always for the better. So Sasse is right to urge justices to keep cameras out of the Supreme Court. We might think about getting rid of them in the House and Senate, too. Frankly, our democracy could use a lot less jackassery.Joel Mathis 2022 Ted Cruz checked his Twitter mentions and a little bit of our democracy died
In the period immediately after Watergate, Congress seemed willing to forgo its habitual secrecy. Disclosure laws bared not only amounts and sources of campaign funding but the personal finances of members. Committees opened their hearings and critical markup sessions where bills are amended for floor consideration. Under Chairman Al Ullman of Oregon even the Ways and Means Committee opened its doors. Since then, however, the trend has been reversed. Ullman’s successor, Dan Rostenkowski, put together the big tax bills of the 1980s in executive session, and this has once again become standard operating procedure.
Opening meetings and releasing documents may not increase public respect for the institution in any immediate or direct way. Indeed, after an initial round of laudatory editorials, there might well be adverse consequences. The public would likely see staged markups, with members voting to ratify deals reached in private before the meeting. The public would also see committee rooms filled with lobbyists, whose presence may well tip votes in favor of special interests. Members frequently justify closed meetings by saying they want to talk to each other with “the lobsters” out of the room.Ronald Elving 1994 Brighter Lights, Wider Windows
In particular, I think the words like transparency, how could you be against it? It's transparent. It's clear. There is a valorization that's built into these words and I think that's extremely compelling, often. And so I think to say that I am against transparency makes me sound sleazy, but in fact, I am against transparency and that's a critical problem in bureaucracy. People want to have a paper trail and that's often the reason why we are happy to say bureaucracies are inefficient. But in fact, bureaucracies are inefficient precisely because we want them to be transparent. And that turns out to be one of the drivers of a lot of red tape. So I'm often skeptical of transparency.Abhijit Banerjee 2022 (Nobel Prize Winner) Putting Our Assumptions to the Test
A lot of cynics say the clean air act was a copout; that it was slapped together by the special interests, the little guy was shut-out, we caved-in to big business lobbyists – all behind closed doors, in some smoke filled room: well, this was the clean air act – we did everything they said we did... But without the smoke... Speaking of “closed doors” I was pretty mad when I tried to get into one of those closed door meetings and found out that the door was locked tight. I pounded and pounded but the door never - opened. I found out later sununu had the locks changed! Hard to believe, because the meeting was in my office!!Muski, Cranston, Cohen & Dole 1990 A Tribute to Senate Majority Leader George Mitchell (Climate)
Potential negative effects that transparency might have on bargaining efficiency…[When] certain special interest groups have undue influence over a decision, then secrecy can have the useful effect of shutting such groups out of the initial stages of the process.David Stasavage 2005 Does Transparency Make a Difference?
A closer investigation reveals that transparency may also have important costs. When representatives know that their individual bargaining positions and/or votes will become part of the public record, they may have a greater incentive to take positions that will demonstrate loyalty to a constituency, even if this means taking an action that they know is less likely to produce the policy outcome they think is best.David Stasavage 2005 Does Transparency Make a Difference?
As the U.S. government has become larger and more open, groups that petition it – lobbyists – have become Washington’s greatest growth industry.Fareed Zakaria 2003 Future of Freedom
In sum, although congressional activity is certainly more accessible to citizens, as the reformers hoped, the weight of the accumulated evidence suggests that the sunshine reforms have had limited effects. In fact, visibility may contribute to legislative inertia. Ever aware that they are, in a real sense, on display, members may conclude that concern for constituents and policy caution, inaction, is the wisest course. Rather than risk alienating constituents and groups whose reelection support they feel is vital, they may avoid controversy and decline to act. Thus, by increasing the possibility for external actors to participate in congressional politics, the accountability reforms may have made Congress not only more democratic but also more permeable – more open to pressures from voters and organized interests that reduce the institution’s ability to make effective public policy. Steps to increase accountability, like those to promote decentralization (responsiveness), may have inadvertently undercut congressional responsibility.Larry Rieselbach 1994 Congressional Reform
The first of the Fourteen Points of January 8, 1918 provided that in future there should be nothing but ‘open covenants of peace openly arrived at’, and that ‘diplomacy should proceed always frankly and in the public view’. On reaching Paris, President Wilson quickly decided that by ‘diplomacy’ he had not meant ‘negotiation’, but only the results of that negotiation, namely treaties. He also decided that the phrases ‘openly arrived at’ and ‘for the public view’ were relative only and contained nothing that need deter him from conducting prolonged secret negotiations with Lloyd George and Clemenceau, while one American marine stood with fixed bayonet at the study door, and another patrolled the short strip of garden outside. I can well recall how startled I was, on first being admitted to the secret chamber, to discover how original was the President’s interpretation of his own first rule. Today, being much older, I realize that the method he adopted was the only possible method which, in the circumstances, could have led to any result. The general public, however, were not similarly constrained to test the validity of the President’s pronouncements against the hard facts of international intercourse. They continued to assume that by ‘diplomacy’ was meant both policy and negotiation, and to conclude that, since secret treaties were demonstrably evil things, negotiation also must never be secret but conducted always ‘in the public view’. This is perhaps. the most confusing of all the fallacies that we owe to President Wilson.Sir Harold Nicolson 1953 The Evolution of Diplomatic Method
Bills are increasingly crafted behind closed doors, and on two major pieces of legislation – the Medicare and energy bills – few Democrats were allowed into the critical conference committee meetings, sessions that historically have been bipartisan. The energy bill – a sweeping package meant to lay out a national energy policy – started in closed-door meetings held by Vice President Dick Cheney’s Energy Task Force and was written in private sessions on Capitol Hill that excluded all Democrats. On the Medicare negotiations, only two Democrats – both already supportive of the bill – were included… Senator Pete Domenici, a New Mexico Republican who was one of the bill’s leading negotiators, said the exclusive conference process was the only way to get a bill written, given all of the regional and ideological disagreements.Susan Milligan 2004 Back-Room Dealing a Capitol Trend
Note: Just a couple years later, in 2007, when Domenici’s Republican party lost power in Congress, his opinion on transparency flip-flopped in a way that apparently all legislators do when in the minority. Speaking of a new energy bill, Domenici said: “I am extremely disappointed to hear that Speaker Pelosi has decided against holding a conference committee to finalize an energy bill and will instead attempt to write a new energy bill through a closed-door process.” He continued, “I know from experience how difficult it is to put together an energy bill. When I was chairman of the Energy Committee in 2005, I made sure that we had an open, bipartisan process that included a real conference.” Pelosi, once again in the minority, did the same thing. Suddenly becoming a powerless advocate for transparency – not because she believes in transparency – she doesn’t – but because it is one of the many ways minority legislators seek to discredit the majority. From another source “Senate Budget Committee Chairman Pete Domenici, R-N.M., held two closed-door meetings Monday with divided Senate Republicans to try to resolve their dispute over the budget and whether to raise taxes next year.”
Most of these meetings occur behind closed doors so lawmakers can escape pressures from lobbyists and reporters, who have made it more difficult for them to handle business “in the sunshine.” This procedure was an integral feature of the 1990 Clean Air Act: virtually none of its major sections resulted from votes on the Senate or the House floor.Richard Cohen 1994 p88 Washington at Work: Back Rooms and Clean Air (Climate)
Why, then, were nearly all the House committee’s meetings and decisions on the clean-air bill conducted behind closed doors, often in the middle of the night? Why, for that matter, were the Senate’s negotiations likewise in back rooms? (The legendary “smoke-filled rooms” of Congress are a virtual relic – few lawmakers or their aides smoke cigarettes at work. The surviving traditionalists often are the target of social pressure from non-smoking colleagues.) The answer, said participants in each chamber, was that, despite some personal doubts about the process, they had no other way to build the consensus and gain the votes required for such a controversial bill.Richard Cohen 1994 p88 Washington at Work: Back Rooms and Clean Air (Climate)
An interest group with a specific issue will be very motivated to make its views known and learn what happened. The general public is not so motivated… But behind closed doors, lobbyists don’t know everything that is going on.Republican Thomas Tauke 1992 Washington at Work: Back Rooms and Clean Air (Climate)
The Madrid conference stalemated and was largely superseded by the secret negotiations in Oslo. Far away from the attention of the media and domestic political pressures, the parties succeeded in devising a framework for a future settlement of their long-standing dispute.Justus R. Weiner 1996 An Analysis of the Oslo II Agreement - Israel and Palestine
Pozen has argued in recent work that FOIA’s request-and-respond model— identified by Gregory Michener (chapter 13) as an archetype of the Transparency-as-Leverage Paradigm—“empowers opponents of regulation, distributes government goods in a regressive fashion, and contributes to a culture of contempt surrounding the domestic policy bureaucracy while insulating the national security state from similar scrutiny.” Some of these effects, as Sam Lebovic demonstrates (chapter 1), were anticipated by agencies such as the Department of Health, Education, and Welfare in the early 1960s when the law was still being conceived in Congress. Over time, Pozen suggests, FOIA may have come “to legitimate the lion’s share of government secrecy while delegitimating and debilitating government itself.” Even if FOIA represented a progressive breakthrough at its creation, the rise of mass communications technologies, statutory reporting requirements, whistleblower protection laws, external watchdog groups, and internal oversight mechanisms, among other developments, has changed the act’s practical and normative meaning.David Pozen & Michael Schudson 2018 Troubling Transparency
At the same time, a growing number of scholars, advocates, and regulators have begun to raise hard questions about the costs and limits of the transparency movement. Some of these commentators accept the movement’s standard premises and prescriptions but worry that open government measures are not actually delivering the openness they promise due to inadequate legislative funding, bureaucratic resistance, or cramped judicial interpretations. Others wonder whether traditional open records and open meetings laws are well suited to twenty-first-century transparency challenges, or whether these laws need to be reimagined for the digital age. A third group of commentators has thrown a harsh light on transparency’s political and administrative effects, emphasizing its potential to facilitate “neoliberal” agendas or to undermine deliberation, deal-making, and institutional capacity.David Pozen & Michael Schudson 2018 Troubling Transparency
By using the term “secret law” to describe what Congress is doing here, I do not mean to suggest anything nefarious. Having served in all three branches of government, including in the Intelligence Community, I have the greatest regard for the public servants who draft and implement secret law, and for the very real national security considerations that drive its creation. I mean only that there is a body of law that meets the following definition: legal authorities that require compliance that are classified or otherwise unpublished.Dakota S. Rudesill 2016 Classified Legislation: Tracking Congress’s Library of Secret Law
The House elected the Speaker via secret ballot for the first half century of its history. Until the onset of viva voce balloting for Speaker (and other House officers, such as Clerk and Printer) in 1839, the House left no direct evidence about who supported whom at any step in the process.Jeffery A. Jenkins, Charles Stewart III 2013 Fighting for the Speakership
Deals that could have been cut within the major party in the secret ballot days no longer worked in the viva voce (roll call) voting days (1840s), as members were afraid of losing their constituents’ trust by voting for a candidate from the other region (based on slavery).Jeffery A. Jenkins, Charles Stewart III 2013 Fighting for the Speakership
In exploring news organizations’ FOIA requests to fourteen federal departments and agencies, however, I find that journalists’ use of FOIA has been declining over time. Who is doing the requesting is also changing. FOIA requests by local newspapers are down significantly, and those by other media such as niche outlets that cater to specific participants in the business of governing (such as lobbyists, interest group leaders, agency and congressional staff, and government affairs specialists in companies) are on the rise. James T. Hamilton 2018 Troubling Transparency
A decade after Congress voted to open all committee sessions to the public in the interests of “government in the sunshine,” some of its most important committees have started closing legislative voting sessions, saying they can get more done behind closed doors…Such closed sessions are held because members have expressed the feeling that they can arrange compromises more easily when lobbyists cannot watch their every move and every decision does not have to recorded formally. Spencer Rich 1985 Washington Post
From 1581 onwards, brief summaries of [Parliamentary] debates, though without rude comments, appear in the Commons’ Journals. As Crown and Members clashed, however, this became dangerous, and eventually in 1628 the Commons ruled that “the entry of the Clerk, of particular men’s speeches, was without warrant at all times, and, in that Parliament, by Order of the House, rejected”. A little later, Sir Edward Dering summed it up: “he did not dream we should tell stories to the people”. This remained the rule for the Commons, and indeed also for the Lords, from then onwards for nearly two centuries. But there were Members busily jotting down notes; and also members of the public extremely anxious to find out what was going on. A slight concession from the House came during the Popish Plot scare in 1680 when Votes and Proceedings were first ordered to be printed and issued to the public. This publication was, however, somewhat dry fare, and the Commons did not face the issue of “letting the public know” until 1738. Opinions were then mixed. Wyndham thought the public ought to be able to judge of the merits of their representatives; but Pulteney refused to be made accountable without doors for what he said within; and Walpole was certain that if speeches were published no Member would be safe against misrepresentation.Maurice Bond & Horace King 1966 The History of Parliament
The ‘Transparency Turn’ in Global Governance Transparency has been called ‘an overused but underanalysed concept’. This certainly holds true for contemporary international law. In all major fields of international law – e.g. [climate] environmental law, economic law, human rights law, international humanitarian law, health law, peace-and-security law – demands for more transparent institutions and procedure. have recently been voiced by civil-society actors, by States, and within the international institutions themselves.
Negative Effects of Transparency Han Morgenthau warned against ‘the vice of publicity’ in diplomatic negotiation : ‘[i]t takes only common sense derived from daily experience to realize that it is impossible to negotiate in public on anything in which parties other than the negotiators are interested.’ In a judgment relating to the Watergate scandal, the US Supreme Court stated: ‘[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candour with a concern for appearances and for their own interests to the detriment of the decision-making process.’
Therefore, in order to mitigate the negative effects of transparency on deliberations, transparency laws and policies will typically contain ‘deliberative exceptions’. For example, in the European Union [EU], access to an institutional document ‘which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.’ Luis Miguel Hinojosa Martinez quotes the World Bank’s justification for secret deliberations: ‘if the view of each ED [Executive Director] is immediately known to the public, it may put undue pressure on EDs, and could also politicize the Bank’s decision-making process’ – and above all for those executive directors who represent several constituencies.
Are deliberation exceptions justified? What exactly are the inhibiting effects of allowing non-participants to listen to deliberations? Sissela Bok has described these as follows: when deliberating before an audience, the deliberants tend to become more inflexible, more radical, and/or they lose candour, becoming averse to risky or innovative opinions. Transparency tempts the participants to rigidity and to posturing, increasing the chances of a stalemate in which no compromise is possible, or alternatively, of a short-circuited and hasty agreement. To pull back from a bargaining position, often done solely for strategic purposes, might be interpreted, if done in full view of the public, as giving in to an opponent. The public gaze tempts deliberators to bypass creative or still tentative idea and leads to premature closure. In sum, the chances for collective learning are diminished.
Concomitantly, the beneficial effect of excluding the public from deliberation is that this allows for fuller consideration of the matter at hand. Deliberators dare to express controversial views behind closed doors, but they also feel as if they have greater freedom to change their minds. They can engage in a tentative process of learning and of assimilating information, considering alternatives and weighing consequences – all of which is needed to arrive at a coherent position. In sum, deliberation behind closed doors can proceed through a process of trial and error, through proposal and counterproposal, through persuasion and bargaining, and sometimes through threat. This is impossible with pressure from the public, including that exerted by special interest groups.
The judicial deliberation and drafting of decision is usually shielded from scrutiny in the sphere of international adjudication, and the rule of various international courts show ‘a considerable degree of uniformity’ in this respect. Neumann and Simma mention a number of reasons why the secrecy of deliberations in international adjudication is even more important than in the domestic realm – notably to prevent government from controlling judges.
In international law-making (treaty negotiation), an aggravating factor of transparency is that the inflexibility and posturing of participants as well as the public pressure of domestic constituencies or special interest groups may frequently lead to a complete breakdown of negotiations so that no desirable outcome results. In fact, these were the reasons given by the representatives of the Great Powers at the opening of the 1919 Paris Peace Conference: ‘[O]pen proceedings would lead to premature public controversy, not only within the interested state, but between the interested nations, render infinitely more difficult the process of give and take, so essential to the negotiations, and hinder the unanimity of agreement which is vital to success’.Anne Peters 2013 Towards Transparency as a Global Norm
The paper’s conclusion is that there is a very broad tendency towards transparent government all over the world, which has not been seriously called into question by the current rise of security concerns.Anne Peters 2010 Transparency, Secrecy, and Security: Liaisons Dangereuses
Senator Mitchell has repeatedly said that he has conducted the back-room negotiations because without them he would be unable to block or end a filibuster.Philip Shabecoff 1990 Mitchell Set to Move a Clean Air Bill to Senate Floor
Reformers in the 1970s also sought to increase transparency in Congress through “sunshine laws” so that the public could more easily observe the actions of members and hold them accountable for their decisions. These changes may have had the unintended consequence of making it more difficult for members to reach compromises and negotiate solutions. Congress adopted a series of important sunshine laws in the 1970s (Rieselbach 1986, Wolfensberger 2000). Previously, committees had routinely met behind closed doors, allowing members to hash out their differences in private. The Legislative Reorganization Act of 1970 opened committee proceedings to media broadcasts to make them visible to the public. The House and Senate also required that committee sessions, including critical mark-ups of legislation, be open to the public unless the panel voted to close them. A second reform targeted voting. The House ended its practice of reporting vote tallies rather than the votes of individual members. Reporting tallies allowed members to keep their vote secret from their constituents. Reformers wanted member votes to be public in order to ensure members could be held accountable for their actions. Finally, the House and the Senate both allowed the proceedings on the floor to be televised on C-SPAN. Sunshine laws are generally regarded as a public good on the grounds that transparency allows the public to hold politicians accountable for their actions. However, some research finds that transparency may actually harm democratic deliberation by making it more difficult to reach compromises. Congressional scholars Sarah Binder and Frances Lee observe that transparency in Congress is a “double-edged sword” that raises the costs of deal-making and interferes with the search for solutions (Binder and Lee 2013, 63-64). It is costly for members to compromise on a position important to interest groups and voters, and public negotiations may undermine the horse-trading common to successful agreements. From this perspective, secrecy and privacy are required for members to resolve their differences, and sunshine laws may have had the unintended consequence of making the passage of appropriations bills more difficult.Peter C. Hanson 2015 Restoring regular order in congressional appropriations
If open talks between states are politically impossible, negotiators and their backers sometimes resort to [secret] “back-channel diplomacy.” When discussions focus on contentious issues, or avowed enemies are searching for a path to peace, back channels can offer a space to pursue unorthodox solutions and long shots, to build trust (or at least get to know one another), and to float ideas without major political or public consequences.Peter Jones 2018 Chasing the Impossible Dream
Back-channel [secret] negotiations have been used in numerous conflicts across the globe, including the Israeli-Palestinian peace process from 1994 to 1996 and the Iranian hostage crisis in 1979–1980. In 1985, the imprisoned Nelson Mandela conducted back-channel negotiations with South Africa’s minister of justice, Hendrik Jacobus Coetsee, that laid the groundwork for the end of the apartheid era. And back-channel negotiations helped to resolve the New York City transit strike negotiations of December 2005.Harvard Law 2023 The Pros and Cons of Back-Channel Negotiations
Political scientists have argued that reducing transparency in Congress could improve negotiating conditions and aid the passage of legislation. I am skeptical that members would view this step to be in their electoral interest, but it is possible that giving members a greater degree of insulation from the intense gaze of interest groups and the public would improve their ability to negotiate and pass spending legislation in regular order. Effective negotiations require privacy that is hard to come by in the wake of the sunshine laws passed in the 1970s. Committee meetings are now routinely open to the public, and floor proceedings are broadcast on C-SPAN. Most controversial votes are recorded. Members who stray from the party line to work with the other side in this environment are immediately criticized. Arguably, one of the reasons Congress may have turned to the creation of omnibus bills is because they are informally negotiated behind closed doors. They may offer exactly the kind of flexibility and privacy members need to make compromises. It is possible that members could more easily reach agreement on bills in the regular order if there were more opportunities for private negotiation or fewer recorded votes. For example, each chamber could report vote tallies on appropriations bills rather than the votes of individual members. Members might be more likely to cast tough votes if their decisions were shielded from direct view. The primary problem with this approach is that transparency is highly valued by numerous stakeholders who are likely to strongly oppose any effort to allow members to make decisions in secret. With a few notable exceptions such as the limits placed on disclosure requirements in campaign finance laws by the Supreme Court, the political system has moved toward greater rather than less transparency. Sites like Congress.gov make bills, reports and votes immediately accessible to the public. Members and party organizations use Twitter to blast out links to information and to take positions on a continuing basis. The lack of transparency in creating an omnibus bill is one of the key criticisms that members, journalists, interest groups and scholars have made of the process. Transparency is generally valued as a way to prevent corruption, while secrecy is equated with inappropriate influence and shady dealings. It is likely that members advocating fewer recorded votes or closing committee meetings would be subject to strong criticism, and for that reason would perceive it to be against their electoral interests.Peter C. Hanson 2015 Restoring regular order in congressional appropriations
Before government was conducted out in the sunshine, senators could vote as they pleased, good or bad, with little voter retribution on individual issues. But in the 1970’s national associations by the dozens were setting up shop in Washington, right down to the beekeepers and mohair producers, and with them came a new threat to the integrity of the legislative process: “single issue” politics. These groups developed very harsh methods of dealing with those who crossed them. Suddenly, every vote began to have political consequences. Congress began to finesse the tough issues and tended to straddle every fence it couldn’t burrow under. Consequently, Congress is failing to get its work done.Senator Dale Bumpers 1999 How Sunshine Harmed Congress
Enhanced secrecy helps Congress mute lobbyist pressure.James Curry & Frances Lee 2019 Can America Govern Itself?
Viewing open meeting laws in the context of the First Amendment [raises] concerns, especially when the state imposes criminal penalties [or other punishments] on violators. Christopher J. Diehl 2010 Open Meetings and Closed Mouths
The more you open up the process, the more people are paid to come up here and – increase spending!James L. Payne 1991 (interview) Culture of Spending
[Wilbur] Mills tried to constrain the growth of the tax-break system. He often closed meetings to insulate Ways and Means from the demands of clientele groups and other lawmakers and he used special rules to protect carefully crafted tax packages from particularistic amendments on the floor. But Mills was thrown from power in 1974 after a sex scandal, and Watergate-era congressional reforms weakened the power of subsequent committee chairmen. The effect was to open the tax writing system to broader public participation and political influences. The immediate winners from these changes were lobbyists, who found it easier to obtain special tax benefits for their clients.Eric Patashnik 2018 Reforms at Risk
Lawmakers have been striking important deals lately. The lack of fanfare is intentional.Russell Berman 2022 Atlantic Magazine Shadow Congress
Most of these meetings occur behind closed doors so lawmakers can escape pressures from lobbyists and reporters, who have made it more difficult for them to handle business “in the sunshine.” This procedure was an integral feature of the 1990 Clean Air Act: virtually none of its major sections resulted from votes on the Senate or the House floor.Richard Cohen 1994 p88 Washington at Work: Back Rooms and Clean Air (Climate)
Note: This citation refers to the successful passage of the 1990 Clean Air Amendments (the most powerful environmental legislation in the past 40 years), which were brokered almost exclusively behind closed doors by Mitchell and others expressly to avoid the pressure of lobbyists. Full citation can be found here.
The obsession with transparency is the tip of the spear of excessive democratization ... No serious person would argue that generals should plan military maneuvers on C-SPAN.Jonah Goldberg 2023 Representation vs. Democracy
For very understandable reasons, we tend to confuse or conflate democracy and representation. The thing about representation — or republicanism — is that it leaves room not just for things like compromise, buy-in, etc. It leaves room for better arguments to win. Everyone hates closed-door-meetings and backroom deals. We’re told that transparency is always better. But if the Constitutional Convention — the mother of all smoke-filled-room meetings—had been open to the public, they’d never have written the Constitution. The obsession with transparency is the tip of the spear of excessive democratization. To have a serious argument or negotiation you can’t have voters watching your every move. You need the freedom to offer concessions that your voters won’t like in the abstract in exchange for concessions your opponents’ voters won’t like. Behind closed doors, representatives can entertain new ideas and compromises. Hyper transparency and democracy removes agency from the people tasked with doing what’s best for the country. We all understand this about all sorts of other important endeavors. No serious person would argue that generals should plan military maneuvers on C-SPAN. Who would want a surgeon to check with voters mid-operation? There’s a reason why judges will often meet with lawyers in their chambers and not in front of the jury. Every editorial board that spews out demands for more democracy and more transparency meets behind closed doors to debate the contours of the editorial. But for some idiotic reason we think politicians should behave like video game avatars of the most engaged and interested voters and viewers. The people who disagree with me on this stuff will often get very pious about the righteousness of politicians doing whatever “the voters” want them to do. That’s democracy! Don’t you understand!? But most voters aren’t in fact paying close — or even any — attention to what happens in Washington. The “will of the voters” is a high-minded term for the will of a tiny sliver of voters and interests who want to keep politicians on their leash. Let politicians have the power to make deals and decisions. Let them haggle. Give them the room to do what they think is best for the country and for the voters not paying much attention. In short, let them represent the interests of the country as they see them. And if—or when—they ultimately screw it up, vote them out. That’s what democracy is for. Jonah Goldberg 2023 Representation vs. Democracy
Congress can no longer function. And as perverse as it sounds, one reason is because there is so much openness -- lawmakers in both parties, but especially House Republicans, are terrified of their activist base and understand that anything less than utter fealty will be regarded as an act of heresy. That makes comprise impossible.Joshua Green 2011 Why Open Government Is Occasionally Undesirable
The [sunshine] reforms also increased the number of recorded votes and opened up committee meetings… making it easier for constituents and interest groups to bring pressure to bear.David Vogler & Sidney Waldman 1985 Congress and Democracy
There is no question that the fact that teller votes are not recorded is beneficial to some Representatives on certain issues. Anonymity is assured and they can vote without fear of interest groups or constituents finding out…this may allow the Member to vote his conscience without fear of retribution…Rep Bill Steiger 1970 Congressional Record - House
It is clear that unbounded transparency can trigger negative externalities, such as stifled deliberation and hefty bureaucratic burdens.Gregory Michener 2018 Gauging the Impact of Transparency Policies
In the privacy of closed-door sessions, lawmakers are better able to reason on the merits of public policy without fear that their enemies will turn their words against them.Joseph Bessette & John Pitney 2011 American Government and Politics
Sunshine laws – open meetings and recorded votes – resulted in an inability of legislators to not confer favors.John Witte 1982 The American Journal of Tax Policy
“We had open and closed sessions during the Clinton trial,” Daschle said. “Surprisingly, we found that the closed sessions were oftentimes more productive. There was more candor, less public positioning, fewer speeches directed to the cameras. There is a need for both open and closed sessions.”Carl Hulse 2020 NY Times – Impeachment Out Of Public View
The irony is that we’ve come full circle: Efforts to open up government to the public have, by and large, expanded the tool kit and influence of highly organized and well-funded “special” interests. Jason Grumet 2014 The Dark Side of Sunlight (City of Rivals)
Political commentators and others recognize the value of candid exchanges (away from the glare of special interest groups) in informal closed meetings.Walter Oleszek 2014 Congressional Procedures and the Policy Process
The more open the internal operation [of Congress], the easier it is for external groups to interpose their wishes at all stages of the process.Richard Fenno 1977
