The Seven Deadly
Myths of Trans­parency

We investigate each of the principal myths used to support congressional transparency (many of which apply equally well to government transparency more generally). In each case we find an astonishing lack of supporting evidence and a number of troubling, flawed assumptions. Indeed, it appears that congressional transparency overwhelmingly (and perhaps exclusively) benefits those in power.

By D’Angelo, King, Ranalli – October 20, 2017

The Seven Deadly
Myths of Trans­parency

The Seven Deadly Myths of Transparency

We investigate each of the principal myths used to support congressional transparency (many of which apply equally well to government transparency more generally). In each case we find an astonishing lack of supporting evidence and a number of troubling, flawed assumptions.

By D’Angelo, King, Ranalli



The Myths

The idea that more transparency in government is always an unalloyed good is a dangerous populist illusion.
– Fukuyama 2015 - The Limits of Transparency

Below, On the left, we list the seven principal myths used to support the notion that legislative transparency improves democracy. Clicking through brings up a discussion of each of these myths showing how they work in reality. And in each case, we make a claim (based on the evidence) that runs contrary to the myth. For more on the specifics of the unintended consequences of the early 1970s transparency reforms check here or the papers and videos on this site.

Myth One {{TransVar>1 ? ' - Actuality' : ''}}

{{TransVar>1 ? 'Transparency Serves Special Interests' : 'Transparency Serves The People'}}

The Myth The Reality We Claim
The Myth
How could anyone be against transparency? Its virtues and its utilities seem so crushingly obvious.
– Lawrence Lessig 2009 - New Republic

Countless scholars, members of Congress, and human rights organizations proclaim that transparency is a principle tool for improving democracy. On their website, USAID reiterates this notion boldly: “The process of governing is most legitimate when it incorporates democratic principles such as transparency...and accountability.”

The logic seems unassailable: increased transparency enables precise interaction between government and the people. Thus, the more information that is delivered to the voters, the better they can monitor and engage in the legislative process. Celebrated scholars like Martin Gilens, Norm Eisen, Archon Fung and Paul Pierson are staunch proponents. They view government transparency as a resource targeted and delivered exclusively to benefit ‘self-governing citizens.’

The Reality
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

Government transparency cannot be targeted exclusively at constituents. Like a grenade blast, public information explodes in all directions, shooting downward (toward the people), outward (toward foreign and special interests) and upward (toward the wealthy and the powerful). Therefore increased transparency benefits, as scholar Rudder suggests (1977), anyone who is interested.

Dozens of celebrated scholars agree, open government initiatives provide insider-trading-style-access to the very groups that they are intended to check – corporate lobbyists, the wealthy, powerful political actors (i.e. the President), foreign entities, special interests etc. Indeed, these non-constituent actors have traditionally been the most extreme demanders and consumers of open government data, far outpacing constituents, who rarely monitor Congress at all. Further, as we see in myth 2, these powerful groups are significantly more able to hold members accountable based on this insider information.

Constituents No, Lobbyists Yes

Unlike corporate lobbyists, constituents are disinterested and inefficient consumers of government transparency. And study after study and scholar after scholar confirm that the vast majority of citizens do not access congressional records at all. This results in a situation where corporate interests are not only the most voracious consumers of government information, with the most power to hold members accountable, but they are also the main participants of open markup sessions, hearings and debates. This dynamic is described precisely by Susanne Lohmann of UCLA:

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.
– Lohmann 1998 - Rationale For Special Interests

This notion, however, is hardly theoretical. In virtually every committee, one can readily see the difference between the flood of lobbyists and absent constituents. This disparity is especially stark in committees energy, health care or taxation (as seen in the following quote):

Lobbyists…lined up early each morning to get seats at the tax-writing markups. At Ways and Means…some eager committee-watchers would arrive as early as 5:30am 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.”
– Murry & Birmbaum 1988 - Showdown at Gucci Gulch

Thus, even under a regime of ideal transparency, we find that constituents are not willing and/or incapable of paying attention to the flood of legislation, resulting in a tragic scenario whereby congressional transparency delivers important information/access almost exclusively to the benefit of the lobbyist. Indeed, the more particulate and difficult to understand the legislation, the better it serves special interests:

If nobody else cares about it very much, the special interest will get its way. If the public understands the issue at any level, then special interest groups are not able to buy an outcome that the public may not want. But the fact is that the public doesn’t focus on most of the work of the Congress. Most of the work of the Congress is very small things... And all of us, me included, are guilty of this: If the company or interest group is (a) supportive of you, (b) vitally concerned about an issue that, (c) nobody else in your district knows about or ever will know about, then the political calculus is quite simple.
– Rep. Vin Weber (R-Min) 1995 - Speaking Freely (Schram)

Note: Before the 1970 Legislative Reorganization Act, no one, but a member of Congress, was allowed into the committee markups. The lobbyists, ironically, were relegated to the lobby. And, as a result of this limited access there were very few lobbyists in Washington. This means that when the doors to Congress are shut, the number of lobbyists dips to near zero, and the ability for powerful groups to pressure legislatures drops as well, thus making the process less accountable, but vastly more democratic.

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We Claim

Powerful special interests are the principal consumers, demanders and beneficiaries of congressional transparency. These interests include the wealthy, foreign entities and powerful political insiders like the President or the Speaker of the House. And these groups far outpace constituents when it comes to accessing and employing government data.

Myth Two {{TransVar>1 ? ' - Actuality' : ''}}

{{TransVar>1 ? 'Accountability Benefits the Powerful' : 'Accountability Benefits Constituents'}}

The Myth The Reality We Claim
The Myth
But as the town hall conversation got chippy — and activists brought up points of disagreement with the senator — Manchin exclaimed, “What you ought to do is vote me out. Vote me out!”
– DeBenedetti 2017 - Politico

It is generally understood that if voters do not approve of their representative’s behavior, they can ‘kick the bum out’ in the next election. This notion of accountability is based on electoral rewards and punishments, and it relies on the ability of the voter to monitor their representative.

Thus, it is assumed that by increasing the amount of information that the voter receives, the more finely tuned is the level of accountability. Therefore calls for increased transparency and accountability often go hand in hand. And the notion is that, by increasing transparency, the representative is suddenly more wary of, responsive to and, therefore, more accountable to the voter.

The Reality
By far the most common assumption is that transparent, accessible information will generate...accountable state behavior – an assumption that in fact glosses over a number of leaps.
– McGee & Gaventa 2011 - Assessing Impact of Accountability

A ccountability is one of the most poorly conceived mechanisms in all of political science. The notion that voters (by voting) have precise control over their representatives’ behavior is a mathematical impossibility. Using a single known variable, we calculate that political parties, presidents and representatives legislate in a world almost entirely devoid of accountability to the voter. As a result, the voter is virtually powerless to sanction their representative anything but the top one or two issues.

But this doesn’t mean that legislators are unaccountable to everyone. Instead it means that legislators, on the vast majority of the issues, become exclusively accountable to those in power. As Richard Fenno wrote in 1976 “(Members grow to) feel more accountable to some constituents than to others because the support of some constituents is more important to them than the support of others.” And Scholar Bessette (1994) specifies precisely whom Fenno intends by ‘some constituents’ – lobbyists. “The opening up of the legislative process can make lawmakers much more directly accountable to interest groups whose support they may need for reelection.”

The Perils of Accountability

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)

A vote is a decidedly weak form of sanction. But it is all that most voters have. On the other hand, those with money and power can apply significantly more pressure, which results in significantly more specific accountability. Indeed, the wealthy and the powerful are able to pressure legislators on issues that voters cannot, and in ways that are far superior to voting. This dynamic, which overturns traditional notions of accountability, is explained precisely by scholar Jane Schacter in the quotation below.

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 (i.e. poor constituents) 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.
– Schacter 2006 - Political Accountability

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We Claim

The public understanding of how accountability works is based on assumption and guesswork. Indeed, congressional accountability overwhelmingly benefits the wealthy and the powerful. This is because accountability, on the vast majority of issues, is not achieved by voting but instead relies on money, ruthlessness, insider information and power.

Myth Three {{TransVar>1 ? ' - Actuality' : ''}}

{{TransVar>1 ? 'Corruption Relies on Transparency' : 'Corruption Relies on Secrecy'}}

The Myth The Reality We Claim
The Myth

To many, the idea of corruption brings up images of secrecy – smoke-filled rooms, back-room deals, money-filled briefcases changing hands in dark alleys, etc. And the overwhelming consensus is that secrecy breeds corruption. As a result, both scholars and transparency organizations assume that increased transparency is the proper tool to battle corruption. This is made clear by the chair of Transparency International, José Ugaz who writes (2016) : “Secrecy fuels corruption and leads to inequality and poverty.” Or Joseph Stiglitz who claims (1999), “Secrecy is corrosive: it is antithetical to democratic values, and it undermines democratic processes.”

And because these notions are delivered with such conviction and they strike a chord with many, they end up being parroted for decades. In one example, Supreme Court Justice, Earl Warren, wrote a paper called ‘Secrecy: Corruption’s Ally’ where he states this notion clearly: “When secrecy surrounds government and the activities of public servants, corruption has a breeding place.”

The Reality
Transparency can actually make corruption worse.
– Johnston 2016 - The Sunlight Paradox

Congressional corruption doesn’t require secrecy. This is because congressional corruption (which is the result of an outside pressure like bribery or intimidation) does not need to be conducted in secret. Indeed, as in the case of the Koch brothers (below), bold and public attempts to bribe national legislators often rely instead on end-to-end transparency.

Further, end-to-end transparency gives the wealthy and the powerful an enormous advantage in their application of grand scale intimidation and bribery. By publicizing (indeed broadcasting) all of their threats and deals, they gain a perceived sense of legitimacy as well as an expedited way to interface with legislators.

Combining transparent bribes with transparent voting, we find that grand scale corruption is not just fully compatible with transparency, it is enhanced by it. And special interests aren’t the only perpetrators of this form of corruption, the Speaker partakes as well (below). The article pays particular attention to how Boehner threatens members based on their transparent votes.

More Examples of Transparent Corruption

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

John Boehner and the Koch Brothers aren’t the only ones to broadcast their threats and bribes publicly. These intimidating tactics are seen in the approach of the NRA, Presidents, Chamber of Commerce, teachers unions, activist groups and others. This public approach was evident in 2005, following Hurricane Katrina, when the distribution of federal aid to victims (as appropriated by Congress) was lower than what many observers expected. In response, Representative Tom Davis put the blame entirely on corruption via public/transparent intimidation:

The only reason you had 70 MCs vote for aid after Hurricane Sandy was because several groups, Club for Growth, Heritage Action, Freedom Works (stated publicly) ‘we are weighing this vote,’ basically threatening to go after MCs that voted for that kind of aid.
– Rep Tom Davis 2005 - Partisan Divide

Fareed Zakaria puts this idea even more succintly, not by mentioning bribery but by observing how transparency can be used as ammunition.

Once lobbyists knew your every vote, they used it as ammunition.
– Zakaria 2003 – Future of Freedom

Ironically, the number of public threats (which almost did not exist before 1970) are so common that we almost fail to notice them, as even hard-nosed news source Frontline fails to in the quote below. But like bribery, intimidation can be readily carried out in public, in Super Bowl ads or the press, in an attempt to alter legislation, no secrecy required. And unlike bribery, threats can last a long time (even decades) and often leave no trace of the corrupt bargain. For a more detailed discussion see our paper, ‘The Evolution of Transparent Corruption.’

The NRA activated its playbook— denouncing the legislation, alerting its members and (publicly) threatening lawmakers.
– Frontline 2015 - Gunned Down

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We Claim

Transparency not only allows for grand scale corruption, it enhances it. Unlike secrecy, it allows powerful groups to literally ‘hide in the sunshine’ as they conduct acts in public that would be considered corrupt if they were done in secret.

Myth Four {{TransVar>1 ? ' - Actuality' : ''}}

{{TransVar>1 ? 'Pro-Transparency Evidence is Lacking' : 'The Evidence Supports Transparency'}}

The Myth The Reality We Claim
The Myth
Today, we will shine a bright light on the linkage between lobbyists and legislators with legislation that requires an unprecedented level of disclosure. And in so doing, we keep our promise to drain the swamp that is Washington DC, to let sunshine disinfect the Congress.
– Nancy Pelosi 2007 - Open Government Act

Is there evidence to support the recent obsession with increased transparency and accountability? This is the notion embraced by Nancy Pelosi (above), the World Bank, President Obama (“Openness will strengthen our democracy and promote efficiency and effectiveness in Government”), countless journalists, myriad scholars and even by an internal congressional caucus devoted to transparency.

Further, some pundits claim that they have proof. For example, White House counsel, Norman Eisen went so far as to claim in a 2017 talk at Harvard that the data supports congressional transparency, citing his often cited (and flawed) Brookings paper as evidence.

The Reality
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

There is no evidence to support the benefits of congressional transparency. The most systematic study on the topic states right at the top “government transparency is no cure-all and does not always have positive outcomes.” And while the article is sometimes supportive of the notion of government transparency, it underlines time and again, that the evidence to support transparency is far from conclusive, stating that the “efforts to enhance transparency often result in more harm than good.”

Further, celebrated scholars Mansbridge and Warren claim the direct opposite, stating “the empirical evidence on the deliberative benefits of closed-door interactions seems incontrovertible.” This not only agrees with the work of James Madison and the other Founders who were all strong advocates of secrecy, it also corresponds with the data, which shows that the US, under a secretive legislature (1960s), had all time lows in income inequality, partisanship, incarceration and government spending.

And...There's no Research Either

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.
– Etzioni 2010 – Is Transparency the Best Disinfectant?

This abject lack of supporting evidence is surprising as transparency has been pushed and supported by over a hundred countries and thousands of cities and states. Yet, despite the lack of evidence, many scholars and academics, like Nobel Prize winner, Joseph Stiglitz make exaggerated claims, touting the benefits of transparency without feeling the need to cite evidence or a single supportive study: “Openess,” Stiglitz writes in (1999), as if stating a universal truth, “is an essential part of public governance.”

Amazed by the lack of data and scholarly work on the topic, scholar Frank Baumgartner (2017) wrote us gushing about our findings: “So interesting. Goes against all the accepted wisdom on a topic where wisdom is so easily accepted, where there is so little research.”

Indeed, it seems inconceivable that something as important as congressional transparency could rely on so little research and evidence. But that is the case. And we cover some reasons for this oversight in our paper. Nevertheless, when the 1970 Act was considered for passage, the congressional hearings were based purely on emotion, politics and guesswork. And they did not cite a single piece of evidence or research. Worse, from that day, scholars have followed suit, touting the benefits of transparency despite the abject lack of evidence.

Still, if we merely look at correlation, the evidence suggests that transparency is indeed detrimental to democracy. Time and again we see that increased transparency correlates strongly with diminished legislative outcomes and greater capture by special interests. Yet, even when this evidence appears obvious, it is ignored. In the case of the World Bank, despite seeing clear evidence, they continued to push forward with transparency as seen in this citation.

In the former Soviet countries local governance institutions have become much more open to public scrutiny, but at the same time there can be little doubt that corruption at all levels has greatly increased...The message for the international development community is to press forward with as many of these accountability mechanisms as is feasible.
– Litvack 2011 - World Bank Report

The same flawed logic appears to hold in the United States as well. Since the introduction of committee transparency in the early 1970s, numerous important metrics have tilted to favor special interests. This can be seen in everything from a massive increase in lobbying, soaring incarceration rates, rising inequality and the near hegemony of oil and coal companies over the discussion on climate. In the most salient example, the conference committees on federal taxation opened their doors in late 1975, within just a few years the tax rates on the nation’s wealthiest had plummeted (see graph below). Yet despite all of this, there is a continued and increasing push for greater transparency.

{{ReadMore1==1 ? 'Hide' : 'And there’s no supportive research either'}}

We Claim

There is an abject lack of evidence, data or research to support congressional transparency. Worse, the correlations, data, and increasingly the theory, strongly suggest that congressional transparency leads to exceedingly detrimental legislative outcomes.

Myth Five {{TransVar>1 ? ' - Actuality' : ''}}

{{TransVar>1 ? 'Intense Citizen Engagement is Not Necessary' : 'Citizen Engagement is Necessary'}}

The Myth The Reality We Claim
The Myth
A popular government without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both.
– James Madison 1822

Nearly every democratic reform initiative relies on notions of increased citizen engagement. This is not a new concept. Since the time of the Founders, it has been assumed that an informed and engaged citizenry is essential to the success of democracy. The logic is apparently straightforward – an informed citizenry will elect better candidates and better hold their representatives accountable.

In addition, these ‘democratizing’ reforms rely on the further assumption that citizens have the capacity and desire to engage. Indeed, most transparency advocacy groups adhere to the belief that citizens would readily engage if all government information were made available in an accessible form. In other words, they assume that the citizen demand for government information is there, but the supply needs to be improved.

The Reality
Nothing strikes the student of public opinion and democracy more forcefully than the paucity of information most people possess about politics. Decades of behavioral research have shown that most people know little about their elected officeholders, less about their opponents, and virtually nothing about the public issues that occupy officials from Washington to city hall.
– Ferejohn 1990 - Information and the Electoral Process

Study after study confirms that citizens do not pay attention to the vast majority of the actions of Congress. Voter ignorance is rampant and always has been. Further, it is unlikely to improve, as government produces millions of pages of hearings each year, tens of thousands of pages of legislation, involving thousands of votes on myriad intricate and nuanced issues covering subjects as diverse as boll weevils, genetically modified foods, theoretical economics, trade policy, weapons systems, tax code adjustments, education reform, etc. With gigabytes of data to sort through, even the most vigilant citizens are quickly overwhelmed.

And while the evidence is clear that citizens do not pay attention to government, it seems just as likely that this is something citizens are incapable of doing, an idea supported by scholars like Etizioni: “Evidence assembled by behavioral economists strongly indicates that people are neither as able to process information nor as likely to act on it as transparency theory presumes.”

But, What if Voter Apathy is Okay?

Not everyone agrees that low levels of civic knowledge constitute a threat to democratic politics...many believe that the need for a generally informed citizenry is overstated. For these scholars the solution [is] to rethink the definition of democracy itself. This view is reflected in the words of E.E. Schattschneider, who wrote: “It is an outrage to attribute the failures of American democracy to the ignorance and stupidity of the masses. The most disastrous shortcomings of the system have been those of the intellectuals whose concepts of democracy have been amazingly rigid and uninventive.”
– Delli, Carpini 2005 – What Americans Know about Politics

While a number of scholars claim that a lack of citizen engagement is a fatal problem, significant data suggests otherwise. Indeed, there is evidence to suggest that governments function just fine (and perhaps better) without a fully informed citizenry.

For example, the US and other governments operated for decades in a regime dominated by secrecy. In America’s case, there was strong legislative (and executive) secrecy from the writing of the Constitution to the passage of the EPA and the Civil Rights Acts, in the latter half of the 20th century. Importantly, many critical democratic metrics (i.e. income equality, government approval ratings, partisanship, incarceration rates, etc) were far better in those periods than they are today. Further, those countries that did not subject their legislatures to transparency (i.e. France) had far better results with inequality than the US.

It seems possible then, that Madison and Jefferson’s notion that democracy requires an engaged and informed citizenry could a myth as well. A myth that Madison, Hamilton and Jefferson were likely aware of as they were pandering to the people. As Hamilton said emphatically in 1792, “Had the deliberations been open while going on, the clamors of faction (special interests) would have prevented any satisfactory result.”

Clearly, though, voter ignorance would be tragic in a direct democracy, as each voter would have to come to an informed decision on everything. But, this is a counterfactual argument, as there are no direct democracies on earth, and referendums have a dark and sordid history. Instead, like most countries, the US is a republican democracy, and voter ignorance on the vast majority of nuanced issues is not necessarily tragic in a republic.

This is because a republic works in much the same way as one might hire a plumber, roofer, surgeon or a mechanic. Indeed, when citizens choose to hire doctors or mechanics, the evidence is pretty clear that even when it comes to possible life threatening outcomes, few of us choose to become as informed as we likely should. Instead we decide in ways very similar to how we choose our candidates, judging hastily on personality, recommendations from friends and convenience.

Thus a republic, with closed committees and secret committee votes, fits precisely with what we know about the public’s limited attention span. By publishing just the final floor votes, the active citizens can still correlate votes to candidates, but by closing the doors of committees, the lobbyists and other extreme demanders are kept in check. And we get a situation where legislation likely benefits the people more than if the people were actively engagede, as suggested here by Madison:

The public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves.
– Madison 1787 – Federalist 10

This secret-committee process, envisioned by the founders, has, for the most part, worked for decades in the US. And during this time, there is little evidence to suggest that voters were feeling left out, even as important decisions were being made in secret. Indeed, both John F Kennedy and James Madison were members of this secretive era of Congress, and as a result, their committee votes and markup decisions were kept from the public. But, even in this era of secrecy, most voters were still overwhelmed by the masses of public information available from their candidates actions, speeches, floor votes and past life – thus leading to voting that is likely as informed as it is today.

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.
– Cain 2016 – Stanford talk: “Is our Government too Open?”

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We Claim

R epublics appear to function better when citizen engagement (and, therefore, special interest engagement) is intentionally limited. This is convenient as there is no evidence to suggest that the public is willing or even capable of engaging in democracy in the ways reformers require. As such, many ‘democratizing reforms’ rely on overly optimistic (pigs fly) scenarios, which lead to tragic outcomes.

Myth Six {{TransVar>1 ? ' - Actuality' : ''}}

{{TransVar>1 ? 'Corporations Benefit From Transparency' : 'Corporations Loathe Transparency'}}

The Myth The Reality We Claim
The Myth
When corporate interests enjoy such prominent influence in the decision-making process we effectively can talk about corporate capture...This is where transparency comes in. Transparency is crucial in the fight for good governance as it allows expose corporate capture when it happens.
– Douo 2017 - Transparency to Tackle Corporate Capture

Surely, greedy corporations, looking to hide their corrupt actions must fight against transparency. Indeed, little could be more obvious than the idea that corporations, in particular, are held in check by increased transparency as government sunshine puts a check on the secret dealings between corporations and the government. Thus, corporations looking to avoid regulations, taxes and perhaps even maintain monopolies find government transparency problematic as it impinges on their ability to manipulate the government in order to maximize their profits.

The Reality
Corporations and lobbying groups have seized on the open hearings to help them hold legislators accountable as never before.
– Hamilton 1984 – Opening Up Congress

Corporations do fight transparency – just not the government kind. So, while they wage war all kinds of corporate lobbying disclosures and corporate transparency, there is no evidence that corporations fight open congressional committees or votes.

Worse, it turns out to work in precisely the opposite way. Ironically, corporate lobbyists team up with transparency advocates to open doors of legislatures. And there appears to be no history of corporate lobbyists ever resisting increased government transparency initiatives, along with a similar lack of evidence that corporations have been somehow held in check by increased legislative transparency.

But there is evidence to the contrary. For example, in 2013, the American League of Lobbyist, the nation’s largest lobbying industry group, stated that it aims “to foster open and transparent debates in the formulation of public policy,” leading to a form of capture that strikes even republican advisors:

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 Transparency Trap

Conversely, in the 1980s even the most pro-transparency groups (Nader, Common Cause) were rethinking their positions on openness because legislation produced behind closed doors appeared to provide powerful checks on corporate interests. Further, in the late 1960s, when there was strong legislative secrecy, both corporations and business lobbyists were continually shut out of the legislative process, leading corporate lawyer Lewis Powell to complain with fury:

Business has been the favorite whipping-boy of many politicians for many years…Current examples of the impotency of business, and of the near-contempt with which businessmen’s views are held, are the stampedes by politicians to support almost any legislation related to consumerism or to the environment.
– Powell 1971 - Attack on the Free Enterprise System
We Claim

Government transparency overwhelmingly benefits corporate interests. And it seems they are fully aware of this. We have found no evidence, nor do we expect to find any, of a corporate interest (or corporate lobbyist) pushing back against increased government transparency, as it is often essential to their success.

Myth Seven {{TransVar>1 ? ' - Actuality' : ''}}

{{TransVar>1 ? 'Legislators are Coerced Into Compromise' : 'Legislators Are Easily Bought'}}

The Myth The Reality We Claim
The Myth

One of the most cliché myths is the notion that legislators are easily bought. As politician Jim Hightower states “candidates trek to the corporate suites and secret retreats of the rich, shamelessly selling their political souls.” This is supported by Ted Cruz, who says, “career politicians’ ears and wallets are open to the highest bidder.” This is a notion that is based on ample real world evidence and academic studies. And its proponents come from both the right and the left:

American democracy has been hacked...The United States now incapable of passing laws without permission from the corporate lobbies and other special interests that control their campaign finances.
– Al Gore 2013 - The Future
The Reality

A  strong correlation between PAC money and voting behavior doesn’t prove that members of Congress are easily bought. And even with clear data showing that a number of individual legislators have succumbed to bribery doesn’t equate to proof either, as the number of convictions (and even indictments) includes only a tiny minority (less than 1%) of legislators.

So, with conviction rates as low as this, it appears that members of Congress might be no more or less corrupt than most any other group of people. This notion is underlined by scholar Dan Ariely who finds that folks involved in politics are no more or less honest than regular people, but likely twice as honest as bankers – ideas supported further by scholar Medvic and Lessig. And from actors, to athletes, to religious leaders, to corporate execs, both Ariely and Medvic find similar numbers of bad seeds in every group – not just politicians.

When we actually meet our congressman, we confront an obvious dissonance. For that person is not the evil soul we imagined behind our government. She is not sleazy. He is not lazy. Indeed, practically every single member of Congress is not just someone who seems decent. Practically every single member of Congress is decent. These are people who entered public life for the best possible reasons. They believe in what they do. They make enormous sacrifices in order to do what they do. They give us confidence, despite the fact that they work in an institution that has lost the public’s confidence.
– Lessig 2011 – Republic Lost

Intimidation is More Powerful than Bribery

In electoral politics the most persuasive incentive is fear – fear of defeat. Survival in office is the paramount concern.
– Kaiser 2011 – So Damn Much Money: The Triumph of Lobbying

So how do we square the circle? We know that studies show that PAC money correlates to influence. We know that citizens can feel the pervasive power of corporate money (bankers, oil companies and the pharmaceutical companies) on legislation. Is it really possible to defend our legislators from the accusations of venality?

The answer is yes. This is because the trouble with these notions is a blinkered focus on bribery and a poor understanding of the legislative process. Indeed, bribery is just one of a myriad number of ways that legislators can be pressured. More importantly, there are numerous powerful ways to pressure legislators that do not involve putting any cash in their pockets. These include negative ads, bad press, funding challengers, and blocking a member’s preferred legislation (thus preventing them from delivering on their promises). More importantly, all of these tactics can be promised – though not delivered – as part of a zero-cost strategy to intimidate legislators based on their votes and other actions. Indeed, as pressures go, bribery (versus negative ads and intimidation) appears to be one of the most expensive and least effective tactics that a lobbyist can choose.

So corporations, given a budget of a million dollars to pursue legislative outcomes, often find it much more economical to avoid bribery by employing intimidation by threatening negative ads, the funding of challengers or the finagling inside of the political system. Indeed, as intimidation often doesn’t cost anything at all, it is the preferred tactic of groups like the NRA, which makes blanket threats to all legislators, often at zero-cost. And because intimidation (unlike bribery) works like a grenade, it likely delivers results from legislators who the NRA has not yet considered.

How to Corrupt an Ideal Legislators

Indeed, because of transparency, it turns out there are myriad ways to corrupt even the most ideal legislator. These are topics we discuss at length in our November 2016 Talk at Harvard Kennedy School as well as our 2017 talk for the League of Women Voters. These involve ideas of intimidation (mentioned above), weaponized transparency, and other tactics which force even an ideal member into compromise.

Talk at Harvard Kennedy School - November 2016

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We Claim

The evidence does not support the idea that legislators are willing to be bought. Instead of being bribed, even ideal legislators are intimidated and coerced into painful compromises by powerful special interests – all actions that rely on transparent voting and open committee markup sessions.