The Trans­parency Problem(s)

How sunshine benefits the powerful

On January 3rd, 1971, the US Congress switched from being one of the most closed institutions in history to one of the most open. Congressional voting and meetings that were once secret were thrust open in a wave of ‘democratic’ transparency. No evidence has yet been offered to support this change. Conversely, there is now ample evidence to suggest that these actions have led to two pernicious and equally debilitating problems resulting in a Congress significantly more susceptible to the influence of powerful outsiders and fraught with ferocious partisanship.

By D’Angelo, King, RanalliCRI / MPSA 2017 and other papers available

Several important steps toward legislative transparency in the 1970s have fundamentally altered how the U.S. Congress and state legislatures operate. Some of these reforms, like mandating recorded votes in the Committee of the Whole and open committee meetings, were widely supported by the press and members at the time. And, despite a lack of supporting evidence, similar reforms were quickly mirrored in other legislatures. We explore the origins and pitfalls of these reforms highlighted by the 1970 Legislative Reorganization Act.

From the very beginning, these open meetings and public roll call votes became contentious proving grounds for ideological purity, party alignment and fidelity to special interests. We elaborate on theories of representation to investigate how and why behaviors change when different types of monitoring are in place. Consistent with the theory, increases in transparency were followed by increased narrow-interest lobbying and wasteful and pernicious legislative gamesmanship (via a process we call weaponized transparency). And the combination of these two problems led to both increased government capture and a soaring rise in partisanship.

Problem One

The Lobbyists Come Inside

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

The 1970 Legislative Reorganization Act (LRA) thrust transparency on Congress before the terms “transparency” and “accountability” were even in vogue. Coming into effect with the 92nd Congress in January of 1971, the LRA fundamentally changed the way federal law is drafted. Before the reform, the vast majority of legislation (including the Constitution, Bill of Rights, Civil Rights Act, and the Environmental Protection Act) was drafted, debated and amended in committees behind closed doors.

For nearly 200 years, these committees weren’t just closed to the public, they also denied access to the President, the press, foreign bankers, oil company lobbyists, other members of Congress, etc. This secrecy didn’t just apply to the markup sessions; it also applied to all voting in committee. To this day we don’t know how JFK, LBJ or James Madison voted on a single amendment when they served as members of Congress.

The opening of congressional committees

But, the 1970 LRA (signed by Nixon) quietly eliminated this protective secrecy overnight. Immediately, everyone on earth had access to nearly every amendment and vote “from hopper to floor.” As a result, the lobbyists (previously excluded from participation) stormed inside and have since become powerful and imposing mainstays during the writing, drafting and editing of legislation. This has been a major coup for interest groups. Since the time of Thomas Jefferson, lobbyists were forced to wait outside – in (as their name suggests) the lobby.

Had the deliberations been open while going on, the clamors of faction (special interests) would have prevented any satisfactory result.
– Alexander Hamilton 1792 – History of the Republic

Clearly then, before 1970, without any access to information, lobbying was a difficult business. The few existing lobbyists (who struggled just to get by) were separated from the drafting of legislation by guards and heavy wooden doors. As a result, they were often entirely unable to ferret out the legislators who chopped their amendments or edited their legislation – information that is essential to a successful lobbyist. But with the passage of the 1970 LRA, this crucial information was served up on a platter. As a result, powerful pressure groups could suddenly hold individual legislators directly accountable by offering rewards (of campaign finance) or punishments (negative advertising, etc). As Fareed Zakaria says, referencing the 1970s laws specifically, “Once lobbyists knew your every vote, they used it as ammunition.”

Problem Two

Democracy in Chaos

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

Sunshine, therefore, has distorted the dynamics between legislator and lobbyist. This has resulted in an enormous gain in power for special interests and a resulting loss of power for the people. Similar power grabs made by other influential groups (i.e. the President and powerful foreign entities) have led to a free-fall of the democratic process. The result is that Congress has flipped from being the people’s representative in the 1970s to today’s fearful corporate handmaiden. We see this both empirically (numerous important metrics have spiraled since the opening up of Congress) as well as theoretically. And these concepts are the focus of a number of our papers and pages on this site as well as two recent talks at Harvard and the League of Women Voters.

Further, we have discovered a number of important pieces to the puzzle, whose logic is diametrically opposed to that of common conception. We find that legislators are not easily bribed, secrecy is important at preventing corruption, an engaged citizenry does not necessarily improve democratic outcomes, and the process of accountability does not work at all as commonly thought. We present these ideas on our page the Seven Deadly Myths of Transparency. Also, despite the counterintuitive nature of our work, we have found broad support for our ideas in the literature.

Problem 2: The Chaos of Weaponized Transparency

Problem 1: The Lobbyists Come Inside