Extreme Demanders

How the powerful benefit from sunshine

Study after study confirms that the general public is rarely an informed consumer of transparency, but other influential groups and individuals are. We investigate each of these ‘competing pressures’ or ‘extreme demanders’ and discuss how the increased transparency of the 1970s has favored them.

By James D’Angelo – Early Draft – Final Version: December 2017

Extreme Demanders

Extreme Demanders

Study after study confirms that the general public is rarely an informed consumer of transparency, but other influential groups and individuals are. We investigate each of these ‘competing pressures’ or ‘extreme demanders’ and discuss how the increased transparency of the 1970s has benefit them while harming constituents.

By D’Angelo



Extreme Demanders

I’m sympathetic to arguments that excessive process transparency just empowers the lobbying interests and extremedemanders who are most likely to use it.
– Drutman 2017 – New America

Study after study confirms that the general public is rarely an informed consumer of transparency. But other influential groups and individuals are. Below, In the menu on the left, we list the primary consumers, demanders and beneficiaries of increased transparency.

It seems likely that this list will prove upsetting to many scholars who continue to assume that the general public (and not special interests) are the exclusive beneficiaries of congressional transparency. But dozens of academics agree with scholar Larry Rieselbach who suggests (1984): “The more visible any action, the more that competing pressures – from the president, interest groups, and the public generally – come into play” something which can likely be intuited from the images below, where the principal and most aggressive attendees of open committees are rarely members of the public.

Senate Armed Services Committee

The ‘Other’ Problems of the 1970s

It seems as if every scholar has some theory for why so many things went wrong all of a sudden in the early 1970s. For instance, Lee Drutman critiqued our notion that transparency is a principle driver of the problems of the 1970s by writing"

You proceed as if the only variable of interest is the level of process transparency, without discussing many other large factors that have changed in the landscape of policymaking in Washington, such as the centralization of leadership power in Congress, the decline of Congressional staff, the growth of the executive branch, the increasing partisan sorting and then polarization, the expansion and complexity of economy, etc.

But what Drutman overlooks is that our list of extreme demanders (and their increased leverage due to transparency) correlates precisely with his ‘other’ driving influences of the 1970s. And we find that each of Drutman’s ‘externalities’ are well accounted for by looking at the consequences of increased transparency – something we investigate on this page – and are, therefore, internal to our argument.

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Extreme   Demanders

{{windowWidth<=992 ? '1. Special Interests & Lobbyists' : 'Special Interests & Lobbyists'}}

Summary The Evidence Conclusion
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 interested consumers wait in line to hear debates on the hazards they face? Hardly. But, without fail, you’ll find lawyers and lobbyists galore, all representing special interests. In enacting the Sunshine 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.
– Statler 1981 – Let the Sunshine In?

The Hordes of Lobbyists

Lobbyists – or often their young, lower-paid legal assistants – lined up early each morning to get seats at the tax-writing markups. At Ways and Means, before the sessions were closed to the public, some eager committee-watchers would arrive as early as 5:30 A.M. to get at the head of the queue and have a chance for a front-row seat. The line sometimes stretched the entire length of the hallway, a city block long, and then wrapped around the corner. There were so many people that it looked like the committee was giving something away-which, at times, it was.
         The lines were immense each day, no matter what subject the committee was discussing. Representative Pete Stark, Democrat of California, devised a formula to explain the phenomenon, which was equally pronounced in both the Senate and the House: “The fewer the number of taxpayers affected, and the more dull and arcane the subject, the longer the line of lobbyists.” Some of those standing in the hall or sitting in the Senate’s wired-for-sound auditorium two floors below billed their clients upward of $400 an hour for their loitering. Others charged as much as $10,000 a month per client.
– Birnbaum 1988 – Showdown at Gucci Gulch

The Quest For Information

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.
– Rubin 2000 – Guide to Politics in America

L obbyists crave and need information. And “the push for more transparency is often advocated by lobbyists themselves.” Indeed, the rise of modern lobbying correlates precisely with the 1970s increase in transparency – a pattern that makes strong intuitive sense. This is because lobbyists are paid for their ability to bend votes and insert/track wording in amendments as the legislation moves forward through committees, hearings and markups, using information which Edsall suggests is used by no one else:

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.
– Edsall 2011 – Putting Political Reform Right (NYTimes)
The Evidence
Transparency is a useful tool for lobbyists – it enables them to keep better track of their competitors, and to demand equal access for themselves.
– Frum 2014 – The Atlantic (Transparency Trap)

Scholar John Wright of Ohio State focuses on special interests, and he argues that the 1970s transparency reforms were not (as often believed) called for by masses of unhappy voters, but instead, pushed through by the lobbyists themselves. The evidence supports Wright’s thesis: not only was there limited public pressure at the time for the increased sunshine, there is also significant evidence that the lobbyists themselves were driving the push for better access via transparency. Wright’s work is underlined here by political scientist Donald Wolfensburger:

While most of the [1970s transparency measures] Congress passed during this period were not in response to any great outpouring of public sentiment...they did have the support of various interest groups as well as of editorial writers and columnists.
– Wolfensburger 2000 – Dawning of the Sunshine Seventies

More importantly, this dynamic can be seen in real life. In the debate over health care, whenever the doors of committees have been closed – under Trump or Obama – the lobbyists raise the alarm and demand access.

But it is also a notion that makes intuitive sense. No group of citizens pays more attention to the actions of Congress than corporate lobbyists. Indeed, monitoring congressional actions is their job. And so, even with salaries as high as $500 per hour, they pack the galleries of the markup sessions and hearings, winding in long lines out of the committee doors and into the hallways. And they are far more likely to respond to the needs of the wealthy (see section 5 – The Wealthy).

The Missing Constituents

This informational obsession by corporate lobbyists might not be such a severe problem if constituents were equally engaged. But they are not. Constituents (often referred to by scholars as ‘diffuse interests), are notably absent from most committee markups and don’t follow nuanced legislative votes. This tragic imbalance of interest is explained theoretically by James Q. Wilson, but it is also seen clearly in the numbers as well:

Another way to measure the dominance of business is to calculate the annual ratio of lobbying spending by business (corporations, trade associations, and business associations) to diffuse interest and labor union spending over time. In 2012, the ratio was $34 spent by business for every one dollar spent by diffuse interest groups and unions combined. That ratio is up from 22-to-l in 1998.
– Drutman 2015 – The Business of America is Lobbying

Indeed, for every study that suggests that citizens do not monitor Congress, there is an outpouring of evidence describing the swarms of lobbyists attending even the most trivial congressional events. And in report after report, one gets the sense the most important committees are exclusively attended by corporate lobbyists.

Money Doesn’t Buy Access...When it is Free

Ironically, when reformers and pundits talk about how money buys access, they ignore this essential form of access (open committees and transparent votes) that was provided for free with the sunshine provisions of the 1970 Legislative Reorganization Act. Then, in the mid 1980s, when legislators staged a brief backlash against the 1970 Act and open committees, it was the lobbyists who stepped in to fight back – for reinstating transparency.

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.
– Calmes 1987 -Fading Sunshine Reforms

Not surprisingly, then, in the rare instances when committees close their doors and refuse to publish records or votes, the lobbyists either fight to keep the committees open or pack their bags and go home. This was seen recently in the design of the Republican health care bill (2017), where the first line of the Washington Times article states “It took secrecy to lock out the lobbyists.” And the article continues to cover the indignance of the excluded lobbyists – not the citizens. And the authors go so far as to comment “to government watchdogs, the level of complaints from lobbyists is a sign of progress.”

Another such example is covered by The New York Times, who interviewed the various departing lobbyists when, in 1986, congressmen Rostenkowski and Packwood shut the doors of both the House and the Senate during the deliberations over the 1986 tax reform. When informed of the closed-door sessions, one real estate lobbyist claimed “it is demeaning standing here...and having little ability to impact (the legislation).” When asked what he thought of the secret sessions, an insurance lobbyist, on his way home, responded to the idea of congressional secrecy by saying, “it’s equivalent to watching them build your gallows.”

And in the 1970s, Harold Scoggins, an oil lobbyist commented on being excluded made his work difficult, but, in a moment of candor he suggested that the secrecy would benefit the people, stating “in a public session there are so many different interest groups eyeballing the congressmen that they’re so torn up they end up doing something nonsensical...that’s how we got where we are.” Finally, Congressional Quarterly reported that the new bills, written in closed sessions “were better when drafted away from lobbyist’s watchful eyes.” And

This notion is chilling. It suggests that lobbyists and not citizens were some of the early diehards of increased congressional transparency. Yet, as shocking as this might sound, it is precisely what we see. Time again we see corporate lobbyists teaming up with transparency advocates to deliver the lobbyists’ lifebood – voting records and unlimited access to markup sessions. Our recent paper, which rethinks the rise of lobbying through the eyes of transparency covers these dynamics.

Once lobbyists knew your every vote, they used it as ammunition.
– Zakaria 2003 – Future of Freedom
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
Outside groups closely follow members’ votes on specific measures and publicize them during election campaigns. Groups may grade lawmakers as “heroes” or “ zeros” based on their votes for environmental or business measures.
– Davidson, Oleszek & Lee 2012 – Congress & Its Members

For lobbyists it is all about information and pressure. From their mobile phones, they scour voting records, hearing transcripts, open-data sites and make endless informational requests. In the most sensitive markup sessions, particularly those on taxation or energy, lobbyists hang on every word, frequently outnumbering both the members of Congress and the citizen observers combined.

Indeed, the survival of a lobbyist depends on how well they can show their clients precisely how and where they affected the legislative process each step of the way, a notion expressed here by scholar Lee Drutman.

Lobbyists often struggle to prove their worth to the bean-counters. To make the case for their continued presence, they must be able to point to deliverables, to policies they’ve personally changed in ways that can translate into real bottom-line dollars...Lobbyists have powerful incentives to deliver these particular benefits.
– Drutman 2015 – The Business of America is Lobbying

In this game of ‘bean counting,’ provable actions like legislator votes, are the essential deliverable. This applies to markup sessions as well, where lobbyists can show their clients how their lobbying led to the insertion or deletion of words from an amendment or bill. All actions that rely entirely on transparency.

Kingdon (1989) underlines this point, saying the for a lobbyist, the “head count (voting record) is used to decide whether to mount a fight in the first instance, and if so, gives guidance about where persuasive efforts must be directed.” Indeed, most models of lobbying influence are built around the notion that money in politics is an exchange between contributions, nuanced actions in committees, and votes.

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Pre 1970
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.
– Zorack 1990 – The Lobbying Handbook
To the extent that businesses did lobby in the 1950s and 1960s (typically through associations), they were clumsy and ineffective. “When we look at the typical lobby,” concluded three leading political scientists in their 1963 study, American Business and Public Policy, “we find its opportunities to maneuver are sharply limited, its staff mediocre, and its typical problem not the influencing of Congressional votes but finding the clients and contributors to enable it to survive at all.”
– Drutman 2015 – How Corporate Lobbyists Conquered America

Before the sunshine amendments of the LRA and successive increases in transparency, lobbyists struggled to survive.

The Result

L obbyists seek out, thrive on, and call for more congressional transparency. When Congress closes their doors, even the most powerful corporate lobbyists file complaints and/or go home in disgust. As the Washington Times wrote in 2017 “It took secrecy to lock out the lobbyists.”

Extreme   Demanders

{{windowWidth<=992 ? '2. The President' : 'The President'}}

Summary The Evidence The Result
But after lobbying members of Congress in a campaign that has included rides on Air Force One, meetings in the West Wing, private vows of political support and public attacks on critics in his own party, Mr. Obama’s top legislative priority remains at risk.
– Davis & Weisman 2015 – New York Times
It has been said that the greatest lobbying group in our society is the government itself. Most of the governmental agencies and bureaus have permanent and overstaffed “legislative liaison” offices whose primary mission is the lobbying of congressmen and congresswomen regarding legislation that may impact their areas of responsibility.
– Curtis & Westerfield 1992 – Congressional Intent
Perhaps one of the contributing factors to the accumulation of power by the presidency is the understanding of special interests that they can sidestep Congress and go directly to the president and get him and his liaison staff to lobby for a given issue. The Presidential Liaison Office has tentacles throughout every agency in the federal government, industry, and public and private institutions that touch virtually every important person who is able to be of service to the president. This personal access to the president is thought to accomplish things directly that would take immeasurable time if introduced through Congress in the proper manner.
– Curtis & Westerfield 1992 – Congressional Intent

Presidential careers rely on congressional votes, and the battles between the two branches are legendary. Because of this, it is likely that no individual (outside of other members of Congress) attempts to influence congressional actions more actively than the President. As such, the executive branch is one of the most influential and well staffed lobbyists in Washington, employing a team of aides whose sole job it is to monitor congressional actions in committees and pressure individual votes. This work is spearheaded by the President’s legislative directors, who maintains staff at every exit of the Senate and House chambers. When Presidents or other members of the executive branch discover that a member of Congress has voted in a way that they don’t like or expect, they corral the member at the door and pressure them to turn around and change their vote.

The Evidence
President Reagan’s congressional lobbying team has drawn wide praise for effectiveness in getting Reagan almost everything he wanted on Capitol Hill in 1981.
– Pippert 1982 – Reagan’s Lobbying Effort
In many cases, however, there is little political isolation for the conferees. Instead external participants, such as the President...have intense interest and impact on the conference deliberations. “This is not a conference between the two houses.” remarked Senator Danforth (R. Mo.) in 1988 about the omnibus trade conference of the 100th Congress. “It's a conference between Congress and the administration.”
– Longley & Oleszek 1989 – Bicameral Politics

Just after midnight, on November 23, 2004 President George Bush was 30,000 feet above the ocean on Airforce 1 talking furiously to a handful of recalcitrant republican members of Congress. What made the conversation particularly frantic, was that the members were in the middle of voting on legislation. In the chamber, as the various lights lit up next to each members’ name (showing how they had voted), Bush’s legislative director frantically updated her boss with the bad news.

And the President was furious. It was an election year, and he desperately wanted to pass Medicaid Part D, one of the biggest government expenditures in history (and viewed by many as a buyout of the nations senior citizens who supported the bill). And while a House vote is traditionally held open just for fifteen minutes, Bush and other Republican leaders weren’t getting the counts they wanted. So they managed to keep the vote open for a record four hours as they pressured the handful of surprise Republicans who had voted against the bill.

And though there is no record of what actually took place in those calls, the context is clear. Members were being threatened and cajoled by the most powerful lobbyist/person on Earth – the President. One congresswoman ended up crying on the floor. Votes flipped. Executive branch staffers stormed into impromptu meetings with others. A congressman was yelling into the CNN cameras “Stop the arm-twisting!” But the arm-twisting didn’t stop until the President got got what he was looking for. Medicaid Part D, the single biggest government expenditure in American history, passed by one vote – a situation that would have likely not occurred if the voting were conducted secretly.

Presidents therefore benefit enormously from transparency. And the greater the congressional transparency, the more the executive branch can wield power over Congress. And, it is therefore no coincidence that the executive branch has wielded far more power over Congress since the introduction of the transparency amendments of the 1970 LRA.

Transparent Information is Power

If in the information age, “information is power” then most of that power rests with the executive. Congress…must continually negotiate with the executive from a position of weakness and dependence.
– Marshall 2008 – Why Presidential Power Expands
Executive branch power at the expense of Congress and the Constitution’s checks and balances has mushroomed since World War II...The steady escalation of unchecked presidential power has transformed the Republic whose glory was liberty into an empire whose glory is perpetual war and domination.
– Fein 2012 – Expansion of Presidential Power (NYTimes)

In our discussions with executive branch staff, they were emphatic about how much the executive branch tracks every single congressional vote, and as such, Presidents (and their staffs) are extreme demanders of transparency. Before 1971 this was something (because of the diminished level of transparency) the executive branch could do on approximately 5% of the votes (the floor votes), now they can do it on all of them. Importantly this isn’t the only way we’ve seen the executive branch pressure votes as the recent brouhaha over Senate health care votes made clear.

Indeed, recently, President Trump has unleashed front page outbursts and overt threats toward the Republican Senators who have voted publicly against him on health care, the debt limit and taxation. With President Obama the pressure was equally intense, and major pieces of legislation often came down to single votes – votes Obama lobbied for hard, with personal calls, rides in Air Force One, private vows, dinners etc.

Thus, congressional transparency has given the executive branch, a precise and powerful lever over the legislative process. Because of transparency, it is trivial for anyone to spot the individual members of Congress sitting on the fence on any vote. Thus all lobbying efforts can be focused on them, allowing both outside lobbyists and the executive a dramatic increase in power, as noted by the quote below.

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The Result

The executive branch gains an enormous amount of power (leverage over Congress) when congressional actions are made transparent.

Extreme   Demanders

{{windowWidth<=992 ? '3. Foreigners' : 'Foreigners'}}

Summary The Evidence The Result
Foreign governments spent millions to develop relationships within the United States with members of Congress...The United Arab Emirates spent a whopping $14.2 million to influence Americans.”
– Itkowitz 2014 – Foreign Countries Influence U.S. Politics

Transparent roll-call votes in Congress and open-government data have no boundaries. As such they are delivered like grenades, allowing anyone who is interested to benefit. This provides a vital foothold for foreign companies and governments to sway US legislation in a way that was previously impossible.

As such, foreign entities (like pharmaceutical giant Novartis, Deutsche Telekom or the government of the United Arab Emirates) are able to demand “equal access” for themselves, even though they cannot cast a single vote in the US congressional elections. And this overlooked form “access,” through the monitoring/pressuring of committee markups and legislator votes enables foreign groups to scientifically track their results, justifying in most cases increased investment in lobbying.

The Evidence
There’s no freer access to one’s government anywhere in the world than we (Americans) allow to ours. Foreign companies have more of a voice in our country than we or they have in theirs. I don’t think it’s a two-way street.
– Knott 2005 – Foreign Corporations Spend Big to Influence U.S.
Domestic interest groups aren’t the only ones working the halls of Congress. For decades, foreign governments [and foreign companies] have paid a pretty penny to hire U.S. firms to get their interests on the U.S. agenda.
– World Post 2012 – Foreign Lobbying in the US

Just as it does for American firms, lobbying the US Congress produces substantial return on investment for foreign entities (both governments and companies).

For example, in 2017, pharmaceutical giant Novartis paid $4 million on lobbying the US Congress, up 32% from the year before. This total allowed them to pressure the outcomes on hundreds of bills and amendments, most too obscure and complex for the public to follow. And their influence was felt on over a dozen committees including the Rules Committee, Financial Services, and most importantly Government Reform. Unlike the American public, foreign companies invest heavily in redesigning how the American government works.

Other foreign pharmaceutical powerhouses include Glaxo Smith Klein and Bayer, who have rode congressional transparency to insert their voices in committees and policy discussions. Thus, it appears hardly coincidental that the rise in transparency (which brought about the the rise in lobbying) would have brought about an equivalent rise in health care costs (below), benefitting a substantial number of foreign companies at the expense of the American people.

But pharmaceutical companies are just one example. British Petroleum spends even more ($5.5 million in 2017), ranking 52nd among lobbying groups overall – just ahead of insurance giant American International Group Inc., the American Bankers Association and Merrill Lynch & Co. Inc. It plays a different game, often targeting national parks and other areas. For example, BP invests heavily in Arctic Power, a lobbying consortium that has led the years-long efforts to open the Arctic National Wildlife Refuge to oil exploration. And its presence is felt on over a dozen peculiar committees as well, including Veterans Affairs, Government Reform, Judiciary and Homeland Security.

Germany's Daimler Chrysler Corporation,

And, so as lobbying produces high ROIs for many of the companies, we would expect a feedback loop where increasing investment (i.e. campaign finance, lobbying etc) leads to increased legislative capture, which leads to increased ROI, etc. This is a feedback loop at least partially driven by transparency, and in our paper “The Evolution of Transparent Corruption” we discuss this dynamic precisely.

Last year, lobbyists for Canada met with members of Congress for “relationship building.” Mexico’s lobbyists reached out to offices about the “Consular Notification Compliance Act,” legislation to protect rights of foreign national prisoners. And Germany lobbied Congress on overseas military bases, presumably since several U.S. installations there are scheduled to be closed.
– Itkowitz 2014 – Which Countries Influence US Politics?
The United Arab Emirates spent a dazzling $5.3 million in 2009 to forge relationships with U.S. officials, the New York Times reported. Saudi Arabia is estimated to have spent about $100 million to gain influence in the U.S. since 2000, notes. Also according to the New York Times, Morocco paid lobbyists more than $3 million to address its border dispute with Algeria, while Algiers spent $600,000 to advocate against Rabat’s position.
– World Post 2012 – Foreign Lobbying in the US
The Result

Powerful foreign companies and governments gain enormously from congressional transparency, often to the detriment of the American people.

Extreme   Demanders

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Summary The Evidence The Result

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.
– Zelizer 1998 – Taxing America
In some respects, the reforms of the 1970s strengthened the hand of the House Speaker.
– Edsall 1984 – The New Politics of Inequality

Partly leaders have the most to gain from partisanship, especially if the party is moving in the direction the leaders desire. As such, leaders routinely discipline, threaten and corral their members, something that cannot be done if they are unaware of how their party members vote. This makes party leaders some of the most important demanders of transparency. And precisely at the time committee votes were made transparent, partisanship began its steep 40+ year rise.

The Evidence
[Transparent] 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

Scholar after scholar has observed how partly leaders benefit inordinately from transparency. In 2013 Sarah Binder and Frances Lee wrote: “Transparency often imposes direct costs on successful deal making…public attention increases the incentive of lawmakers to adhere to party messages.” This reflects the ideas of the Founding Founders who suggested that ‘visibility’ compels legislators to stay locked in on their positions, and presents an environment where members were afraid to ask questions or play with new ideas.

Other scholars see similar patterns of conformity: Stephanie Novak in 2015 wrote “decision makers used to voice their disagreement more frequently when they knew their votes would not be published” and Andrea Prat in 2005 wrote “revealing the agent’s action leads to conformism.” And we see this conformity in the numbers as well, as transparent voting is far more likely to break along strict party lines. This is often to do with the weaponization of voting, something most often conducted by party leaders

This math is reflected in the recent work of Sean Theriault who studies partisanship almost exclusively. His writing is chilling, he writes “Almost the entire growth in party polarization since the early 1970s can be explained by the increased frequency of and polarization on procedural votes in the both the House and the Senate.” And in our conversations, he agrees that transparency/visibility is essential to this discussion. Importantly, he suggests that while these votes were made transparent in the 1970s, scholars have increasingly understood procedural votes to be ‘invisible’ to the public because they are not covered in the press and are too obscure for watchdog groups. What this means is that they are scrutinized almost exclusively by all the other extreme demanders, and pressure is applied appropriately.

In today’s Congress, procedural votes are often little more than an informal declaration of partisan identification. With few exceptions, a member, quite independently of their view of the substance of the legislation, will vote as though party leaders are the primary audience.
– Theriault 2014 – The two faces of roll-call voting
Party leaders have a keen interest in monitoring votes but, except under unusual procedural circumstances (e.g., secret voting in House officer elections), leaders face minimal obstacles to monitoring votes, so asymmetries in monitoring costs generally favor party leaders over other competitors for legislators’ loyalties.
– Carey 2009 – Legislative Voting and Accountability
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.
– Lee 2016 – Insecure Majorities

In particular (with respect to partisanship), party leaders vigilantly watch these procedural votes. And as such, party leaders (the Speaker in particular) are important consumers of transparency, and in their interactions with all other members, there is a specific knowledge of how well the member’s individual votes align with those of the leadership, where a strong positive alignment results in better committee positions, increased party funding and better access to the legislative agenda, etc. Using these notions we show that transparency allows for the corruption of even the most ideal member of Congress. In summary, cooperation (such as partisanship) relies on feedback (rewards and punishment) that is based entirely on intricate and detailed information. Without transparency we expect that extreme partisanship disappears, and the data/correlations fit our theories.

A main reason for adopting secrecy… is that deputies cannot be held accountable by party leaders.
– Elster 2015 – Secrecy and Publicity

QUOTES FROM CARRUBBA 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.

Second, 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. If we wish to assess the overall level of party discipline in a legislature, then one of the key counterfactuals we need to address is how party members would have voted if an observed roll-call vote on a piece of legislation had not been by roll call.

This is an extremely difficult counterfactual to examine empirically

We chose to focus on the disciplining motivation, because roll-call votes provide an obvious means by which party leaders can monitor compliance with their voting instructions. Moreover, several studies of legislative behavior indicate that party leaders and members in fact request roll calls for this reason (Fennel 1974; Jenkins and Stewart 2003).

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.
– Stasavage 2006 – Polarization and Publicity
In short, legislative process enables the parties to wage partisan wars, not just policy wars. This explain[s] why the parties diverge more in eras where process empowers party leaders. Legislative process is arguably the backbone to today’s polarization.
– Huder 2013 – How Congress Polarizes America
As the party’s congressional leader, the Speaker has a responsibility to his partisan members. And it is important to note, not all legislative goals are policy goals. In many, if not most cases in the current Congress, votes taken on the floor are political. In other words, they are meant to distinguish the two parties rather than create good public policy. In other words, opportunities to make the opposition party look bad are just as likely to receive votes as those that create good policy.
– Huder 2013 – How Congress Polarizes America
The Result

A s transparency gives party leaders enormous power over the rank-and-file, and parties can now push partisans farther to the extremes, partisanship and gridlock soars.

Extreme   Demanders

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Summary The Evidence The Result
My name is Woody Cozad. I used to be a lawyer. Now, I'm a lobbyist. And, as one of my fellow right-wing friends said to me, I'm like a doctor who specializes in the diseases of the very rich. And so I try to represent people who can pay my bills. So I’m one of those evil guys manipulating the rules and changing them.
– Cozad 2017 – Saving Capitalism

No group is better equipped than the rich when it comes to influencing Congress. Routinely wealthy individuals (i.e. the Koch brothers) lean on Congress with their over-sized muscle and resources in attempt to bend legislation in their power. And by definition, the wealthy can only ever be a special interest at odds with the general public as the definition of ‘rich’ is a relative term. But when it comes to politics, the wealthy have a long history of not only paying more attention to political action than the general public, but also sending representatives to Washington to act on their behalf – scrutinizing like all other special interests, legislative votes and congressional actions – and in the process, demanding the services of the best lobbyists.

The Evidence
There’s this notion that the wealthy use their money to buy politicians; more accurately, it’s that they can buy policy, and specifically, tax policy. That’s why these egregious loopholes exist, and why it’s so hard to close them.
Berstein 2015 – Center on Budget and Policy Priorities

A pplying our idea that ‘legislative accountability overwhelmingly benefits the powerful’ to inequality would mean that increased transparency overwhelmingly benefits the rich to evade taxes and protect their markets. This is precisely what we see, and copious data exists to support this idea.

Indeed, as soon as the congressional conference committees on taxation opened their doors in late 1975, the effective tax rates on the rich plummeted (see graph below).

While this change in taxation contributes enormously to inequality, it is nearly impossible to pin this change on the usual suspects of globalization and technology. Further evidence that globalization and technology are not factors is the diverging inequality between the US and Europe. Indeed where developed countries had low transparency we saw low inequality (see France-US graph below). And we have further found compelling evidence to suggest that the increased transparency was used to pull apart the unions as well.

The very richest Americans have financed a sophisticated and astonishingly effective apparatus for shielding their fortunes. Some call it the “income defense industry,” consisting of a high-priced phalanx of lawyers, estate planners, lobbyists and anti-tax activists who exploit and defend a dizzying array of tax maneuvers, virtually none of them available to taxpayers of more modest means.
Scheiber 2015 – For the Wealthiest, a Private Tax System
The rich in a democracy have one vote just like everyone else. But it would of course be naive to think that wealth would bring zero additional advantage. A modified version of the democracy hypothesis is to suggest that democracy only results in greater taxation of the rich when the rich are unable to use their wealth to capture the political process. As we noted previously, theorists of republican government have long feared that inequalities in wealth would lead to the wealthy imposing their policies. It is possible today to think of multiple channels through which this effect might take place. The rich will logically be in a better position to lobby and give campaign contributions. They may also be better informed about how specific policies will influence them. Maybe they are also simply more likely to travel in the same circles as those who make policy.
Scheve & Stasavage 2016 – Taxing the Rich

The rise in lobbying by the wealthy (and all other groups) correlates remarkably well with the 1970s rise in congressional transparency, and this is far more than a simple correlation. In our paper we investigate the massive rise of lobbying through the lens and driving force of legislative transparency. The ultra-wealthy “literally pay millions of dollars for these [lobbying] services,” says scholar Jeffrey A. Winters “and save in the tens or hundreds of millions in taxes.”

How and why money should be so powerful in a democracy where each person has a vote – and most voters, by definition, are not in the 1 percent – has remained a mystery.
– Stiglitz 2012 – The Price of Inequality
Senators race to pass tax bill by sweetening gains for the rich. As lawmakers scrambled to shore up votes from wavering colleagues, the deal-making centered on changes that would widen the bill’s divide between the rich and the middle class.
– Tankersley et al 2017 – New York Times
The problem is that the Court has given wealthy individuals and corporations the right to contribute unlimited amounts of money to Super PACS or spend it on their own independent messages.
– Cain 2014 – How Much Transparency

The Wealthy Push For Transparency

Indeed, the push for more transparency is often advocated by lobbyists themselves.
– Cooper 2017 – Politico

In the 1970s and 1980s the wealthy not only didn’t fight transparency reforms, but they supported them. We are seeing the same forces take place in Europe now (where the EU still has many closed committees). In a recent Politico article, author Cooper notes that the transparency advocates and corporate lobbyists are both pushing for transparency, together.

Concerned about how key negotiations are being pushed into the shadows, transparency campaigners and corporate lobbyists have formed an unlikely coalition in response.
– Cooper 2016 – Politico
There’s this notion that the wealthy use their money to buy politicians; more accurately, it’s that they can buy policy, and specifically, tax policy. That’s why these egregious loopholes exist, and why it’s so hard to close them.
Berstein 2015 – Center on Budget and Policy Priorities

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The Result

With increased ability for the wealthy to dictate policy, taxation on the rich drops and inequality soars.

Extreme   Demanders

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Summary The Evidence The Result
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)

Increased transparency has led to amendment warfare in Congress. Members will vote ‘no’ on some issues specifically because some other member voted ‘yes.’ With the press watching closely to interpersonal interactions and always hungry for conflict, or supposed back scratching, members have to watch their step, and the votes of all other members.

On agriculture, all the Republicans would come into the chamber and ask, ‘How did Conrad vote?.’
— Senior LA to Sen. Thune - Legislative Cue-Taking
The Evidence
Forcing (transparent/public) votes on divisive “hot-button” issues provides campaign ammunition to party colleagues and supporters back home.
– Oleszek 2015 – Congressional Procedures and the Policy Process

Celebrated congressional scholar, Steven Smith first wrote about what we call “weaponized transparency” in 1989 in Chapter 2 of his book “Call to Order.” His chapter is a scathing indictment of the fallout from the increased transparency measures, which he claims are the sole reason for the increased use of the authoritarian leadership tactics known as special rules, suspension of the rules, etc). Smith claims that the massive increase in roll call voting and amending is the result of members using the increased 1970s transparency to attack other members. So as soon as all amendment votes were made public, any member could propose an amendement that is explicitly written to call out any other member, forcing them into divisive and painful roll call votes.

Harvard scholar, David King, suspects that this dynmic is the main driver for the increase in amendments and forced roll calls (a 400% rise since 1970) in both the federal government and state legislatures. And while various scholars and legislators talk about this problem (Frances Lee, Walter Oleszek, Roger Davidson, Steven Smith, David Obey and others), no systematic study of this issue has ever taken place. We are looking to undertake this in a future paper titled “Weaponized Transparency.” And in all our discussions with other scholars (Mansbridge, Elster, Lee, etc) they are very ethusiastic about this direction.

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.
- Ornstein & Mann 2000 - Permanent Campaign

For more information on weaponized transparency see this link.

The Result

Transparency allows members to conduct full-scale warfare through the amending process, leading to chaos, partisanship and plummeting congressional approval ratings.

Extreme   Demanders

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Summary The Evidence The Result
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.
– Johnson 1994 – Open Meetings and Closed Minds
Instances of outright corruption are rare. While they make good news stories when they do occur, the media’s fascination with scandal has done a disservice to political accountability.
– Drutman 2015 – The Business of America is Lobbying

Since the 1970 LRA, legislators have converted the transparent amendment process into a kludgy and wasteful messaging system targeted at the press and constituents. Instead of pushing forward with new legislation or working out the details of other legislation, minority parties spend inordinate amount of time conspiring how to get the majority party on record for dangerous votes, and once they land on a good one, they call for that vote over and over to remind the often forgetful press and public.

Worse, the issue space for both the median and the public is tiny, as they focus on perceived scandals, government waste, etc. Thus legislators, once they find a hot button issue, continue to call for public votes on that issue over and over, knowing that the votes are not intended to change policy.

Transparency often exacerbates crises. 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.
– Finel & Lord 1999 – The Surprising Logic of Transparency
As much as it is important to have transparency and media scrutiny, there are times when not having media, so people can open up, be more expressive and more honest with each other, really can make a difference.
– Sen. Tom Daschle 2014 – The Dark Side of Sunlight

For everything that we hear about the short attention span of the public and the media cycle, the press tackles only a surprisingly small amount of issues over the year, and in turn they cover each of these with remarkably little depth. Recently things like taxation, immigration and health care. Members write amendments to excite the press. Messaging Lee. THE DECLINE OF INSTITUTIONAL CAPACITY - Despite their almost abject disinterest in government information, the media aren’t innocent bystanders when it comes to congressional abuses based on transparency. Indeed, increased transparency not only leads to the public being manipulated by the calling for more recorded votes, it also spurs on congressional actions that are detrimental to the functioning of government.

One Interstate 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.” Some members thought the openness concept could be carried too far. Staggers said members were sometimes pressured into voting for open sessions against their consciences for fear of being accused of underhandedness. “What I resent more than anything else,” said AI Ullman (D Ore.), “is people wrongly accusing members of bad motives when they vote to close one or two sessions for legitimate reasons…. They should get more sophisticated about that.”
– CQ Quarterly 1973 – Senate and House Open Up their Sessions
The picture of Congress conveyed in the media is scarcely … flattering. Journalistic hit-and-run specialists… perpetuate a cartoonish stereotype: an irresponsible and somewhat sleazy gang resembling Woodrow Wilson’s caustic description of the House as “a disintegrating mass of jarring elements.”
– Davidson, Oleszek & Lee 2012 – Congress & Its Members
As discussed below, there is little or no evidence that “gotcha journalism” — even if one thinks it is valuable — is dependent upon open meetings for its existence. The dusty back roads of investigative journalism almost always lead elsewhere.
– Johnson 1994 – Open Meetings and Closed Minds
If a guy was reading a newspaper, they’d always show a close-up of him. If a delegate was picking his nose or scratching his ass, that’s what you'd see. If somebody had a bald head, you could be sure of getting a close-up view of the shiny spot. No wonder so many of us were skittish. After all, why should the greatest legislative body in the world allow itself to be demeaned and humiliated before millions of people?
– Speaker Tip O’Neill 1987 – Congress and the People
While most of the [increases in transparency] Congress made during this period were not in response to any great ourpouring 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.
– Wolfensburger 2000 – Dawning of the Sunshine Seventies
The idea of making antisecrecy refonns the centerpiece of the bipartisan package was the brainchild of DSG staff director Richard P. Conlon, a former newspaper reporter who sensed that the antisecrecy theme would appeal to journalists. It did. The subsequent full-court lobbying campaign attracted the support of the AFL-CIO, National Education Association, Americans for Democratic Action, the National Committee for an Effective Congress, the National Fanners Union, and the Anti-Defamation League. And it generated dozens of editorials around the country, many of which were later inserted in the Congressional Record. As two political scientists would later observe: Probably not since the revolt against Speaker Cannon in 1910 had the nation’s press taken such an interest in congressional procedures. Whether or not the general public evinced any deep interest in the question is doubtful.
– Wolfensburger 2000 – Dawning of the Sunshine Seventies
Parties may stage failed roll-call votes on the same issues over and over. Holding votes on multiple occasions elevates an issue in the news repeatedly...“If the definition of insanity is doing the same thing over and over again and expecting a different result, House Republicans are indeed certifiable...But in an arena that rewards repetitive messaging, the laws of sanity don't hold.”
– Lee 2016 – Insecure Majorities
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...Even more successful was the coalition’s appeal to journalists. Since the press hates secrecy in all forms, this proved to be a highly productive technique.
– Bibby & Davidson 1970 – On Capitol Hill
National representatives assume a negativity bias of the journalists and the public at large (Kahneman and Tversky 1984); they expect that the journalists and the public in their home country will perceive negative votes or abstentions as evidence of failure in the negotiation process and for this reason will pay more attention to these votes than to the absence of opposition. National representatives also want to avoid the possibility that their political opponents will use their negative vote against them. A representative of a member state X explained that such votes trigger media attention while journalists usually overlook measures adopted without opposition: When we are isolated, we prefer not to express our opposition because the journalists in X would make big titles with it – “X voted against in the Council” – without reporting that on twenty points, X got what it wanted, focussing only on the negative vote. (October 2007)
– Novak 2015 – Secrecy and Publicity
The Evidence
A large share of legislative party resources is now dedicated to increasingly elaborate efforts to drive partisan messages in the news media. The older members were “aghast” at the idea that they would participate in political guerilla warfare. Rep. Bentsen (D-TX) said, ‘This is folly. We are going to destroy our economy and country over politics?’
– Lee 2016 – Insecure Majorities

Mayhew argued that members of Congress seek to promote their own personal reelection by constantly engaging in expensive advertising to establish credit and underline their positions. Before the 1970s this required a lot of expended energy and money as members would make speeches, attend events, shake hands, and try and gain favor with the press. But with the advent of the sunshine laws in the early 1970s, members were given a much louder forum. Transparent votes and open committees allow members to manipulate the press, giving members increased publicity with a greater degree of perceived legitimacy, all at no charge.

The media in turn latches on to conflict, perceived corruption, scandal, or anything it can turn into click bait, for increased viewership. And the members know this, so the members work exceedingly hard to bring issues to a public vote that will not just make them look good, but also make their opponent look bad. And if the press bites, the members wash and repeat, running the same issue back up for a vote time and again, knowing that the press scours the congressional record specifically for these types of conflict votes.

This chicanery accomplishes a number of things. It helps members gain publicity, disparage their competitors, and provide cover for a number of less salient issues. But it comes at a hefty price. Thousands of votes a year, hundreds upon hundreds of legislative hours are devoted to this game that is not intended to pass legislation or improve policy – it is merely designed to send ‘message votes’ out to the press, who then run article after article on these divisive yet wasteful votes.

The Bonding Costs Created By Media Attacks

Monitoring and Bonding Costs

In their seminal piece on the topic, Professors Michael Jensen and William Meckling categorize agency costs into three types: monitoring costs, costs, and residual losses. Monitoring costs are the costs to the principal of policing the agent’s conduct to ensure that the agent in the principal’s interest. Bonding costs are those costs expended the agent to prove to the principal that the agent is acting appropriately. Residual losses are the costs inherent to the principal-agent relationship because of the inevitable divergence of interests between principal and the agent.
– Epps 2008 – Harvard Law Review

But it is a game with no winners, because both parties participate in this pernicious process with equal fervor, spendding more time trying to take eachother out than building coalitions or passing good legislation.

For example, there is a big problem with Congress’s decreased capacity. But no member dare step up and ask for more funding, because the other party, will highlight these votes to a hungry press in a way that makes it sound like the legislator is greedy, corrupt and wasteful. As a result, the increased transparency has members sleeping in their staff offices and avoiding any vote on improving their ability to govern.

The news media is sells conflict and partisanship. As such they are not an unbiased consumer of legislative transparency. There is little value in a story about the passage of hard to understand legislation.

As Frances Lee notes in her writing, the public is especially concerned about ideas of good governance and potential graft and wastefulness. So as the public might not care about the specifics of GMO testing, trade negotiations, war or education, they get very excited by ideas of a perceived laziness (a member not voting on every bill) or perceived self serving (a member voting on salary or staff that might make their lives easier). And this fear that members have as a result can have dire implications on the institutional capacity of Congress (something you have recently written about).

As you know there have been an increasing number of members that sleep in their office. It has attained a certain cachet and substantial press. By sleeping in their office the members can message to the constituents through the press by saying "I’m thrifty, I don’t use a lot of money. I don’t believe that us members should use tax payer dollars to spoil ourselves." In a way, sleeping in one’s office has received enough public attention that the choice of doing so could be perceived as a transparent vote on government spending. And therefore sleeping in the office has become a strong signal about ideas of ‘good governance.’

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.
– Lee 2016 – Insecure Majorities

The same appears be true in the case of voting for increased institutional capacity or even increased member salaries. Under secrecy, decisions to increase congressional spending would certainly piss off the public, but the individual legislator could avoid direct responsibility for doing son. Once these votes and decisions are made transparent, they are made personal. And as these issues are “good governance” issues, they are (as Frances Lee suggests) some of the most important votes a member makes. Indeed, Frances Lee writes about the importance of this extensively in her book, saying “[members] strategically deploy 'good government' causes to enhance their own party's reputation and to undercut their opposition’s…[and] congressional partisans exploit these issues to maximize their identification with positive values and their opponents with negative ones.”

So this means to me that voting for increased institutional capacity, higher salaries for staffers, better information systems etc, has become a very sensitive vote in his era of transparency, and so members on both sides of the fence, stay clear from spending any money on themselves.

This, of course, isn’t the only way that a direct accountability to the public might derail the effectiveness of a legislature (JFK despised transparency for these reasons as well), but since it is something you recently wrote about, I figured it worth a mention.

The Result

The public and the media are obsessed with scandals, scouring transparency records for perceived violations. As the public responds most to perceived waste and good governance issues, the combination causes a decline in institutional capacity.

Extreme   Demanders

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Summary The Evidence The Result
There’s no question that transparency rules give a leg up to those who bother to look at what is being revealed. I happen to be one of the daily beneficiaries of the amount of legislative information posted daily in my work on such things as special rules and the legislation they make in order. This enables me to keep my comparative data up-to-date with minimal fuss.
– Academic Donald Wolfensburger 2017 – Communication to authors

A central assumption of many scholars is that open voting represents a legislators views as precisely as secret or closed voting. Yet, not only is there no evidence to support this, a number of scholars call this idea into question. Novack finds that legislators are far more likely to polarize or join the majority decision in cases of open voting than they might be in closed votes. And Harvard scholar Vermeule highlights numerous cases in legislatures around the world where both open and secret votes were taken on the same proposal and the votes frequently (if not always) varied, some quite dramatically.

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...The increase in information available in real time to members has undoubtedly changed voting strategies.
– Straus 2012 – The Rise of Roll Call Votes
The Evidence
I’m of two minds, as a concerned citizen I see that transparency might be creating problems, but as an academic, I like having access to the data.
– McCarty 2017 – Interview
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.
– Vermeule 2010– Open-Secret Voting

Further once the vote leaves a public record, the actual calling for a vote or the proposing of an amendment has political consequences. This is because some actors will now use the transparency as a way to weaponize the process.

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

The Result

A cademics not only build their careers off of roll call data, they likely come to myriad spurious conclusions as voting in public is subject to outside pressures, and is therefore often different from voting in private. In the rare cases where both secret and open votes are taken the results frequently differ.