The Trans­parency Problem

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. Not only was there no evidence at the time to support this change, there is now ample evidence to suggest that increased transparency and accountability overwhelmingly benefit the powerful and greatly faciliate corruption.

Harvard / MPSA 2017 PAPER AVAILABLE

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

Introduction

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 opening up committees to public view, were widely supported by the press and members at the time. And similar reforms were quickly mirrored in other legislatures. We explore the origins of these reforms, highlighted by the 1970 Legislative Reorganization Act. Key reforms were inserted by lobbyists seeking to more efficiently monitor the behavior of legislators. Representatives adjusted by changing their behavior in open markups and conference committees and how they voted in the Committee of the Whole.

These open meetings quickly became contentious proving grounds for ideological purity, party alignment and fidelity to special interests. We elaborate on theories of representation to understand how behaviors change when different types of monitoring are in place. Consistent with the theory, increases in transparency were followed by increased narrow-interest lobbying, wasteful and pernicious legislative gamesmanship, increased partisanship, and more. While we aren’t the only ones to suggest that transparency poses a problem, we are among the only ones studying these dynamics systematically. Further, in our work, we call attention to specific reforms (increased committee secrecy) that would not only reestablish deliberative spaces for legislators, but also wrangle in the excesses of lobbying and pressure politics.

The Law

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 1787 Constitution, 1789 Bill of Rights, 1964 Civil Rights Act, and the 1970 Environmental Protection Act) was drafted, debated and amended in committees behind closed doors.

Indeed, for nearly 200 years, these committees weren’t just closed to the public, but they also denied access to the President, the press, bankers, oil companies as well as other members of Congress. This didn’t just apply to the markup sessions, it also applied to all voting in committee. To this day we don’t know how John F Kennedy, Lyndon B Johnson or James Madison voted on a single amendment when they served in Congress.

But, just as the fascist party of Italy had done 20 years before, the 1970 LRA (signed by Nixon) quietly eliminated vast amounts of congressional secrecy overnight. Immediately, everyone on Earth had access to nearly every vote, hearing and amendment “from hopper to floor.” This was a major coup for interest groups. Since the time of George Washington and Thomas Jefferson, lobbyists (as their name suggests) were forced to wait in the lobby. Completely separated from the writing of legislation by heavy wooden doors, the few existing lobbyists found their work nearly impossible. In particular, they were often entirely unable to ferret out the individual legislators who were responsible for chopping their amendments or dropping their legislation (in order to reward or punish them). But with the LRA, this crucial information was served up on a platter – committee doors were swung open and votes were public. As a result, powerful pressure groups could suddenly hold individual legislators directly accountable by offering rewards (of campaign support) or punishments (intimidating them with negative advertising, etc).

As if this wasn’t enough, in 1973 a set of four jumbotron-sized electronic boards were hung on the walls of the House galleries just above the Speaker’s head (image below). As members voted on the floor, their names were broadcast above in bright lights. Next to each name was a red dot if they voted ‘no’, a green dot if they voted ‘yes’ and a yellow dot if they were still undecided. Because of this, for the first time in history, any legislator (or lobbyist) could get a second-by-second, rolling tally of all member’s votes by just checking “the board.” Importantly, these boards removed all signaling costs between members, lobbyists and others, allowing for broad unspoken arm-twisting of all members on each vote. As such, the boards, themselves, are likely a significant source of increasing partisanship and corruption.

Still, few citizens are aware of the existence of these jumbotrons. This is because as soon as the voting ends (and the member’s votes are published), the boards are covered in brocade cloth. As a result, images of these 12-foot square monstrosities have yet to appear in textbooks and are never exposed during the Chamber’s most public events like the Presidential State of the Union. But that does not diminish their importance on history. From the day the boards were installed, 50 years ago, the members (and other interested parties) watch them with the fervor one might follow the rolling ticker of the stock market or the final out of the World Series.

The Changes

1. Lobbyists Get the Upper Hand

It is an understatement to say that this massive increase in transparency brought about dramatic changes all over Washington DC. Overnight, the power dynamic between lobbyist and legislator flipped. Where once the congressman held all the cards in every meeting, the tenor changed completely. The lobbyist could suddenly wield credible threats and strike deals based on verifiable votes. This newfound accountability changed the political landscape by allowing ‘insider-trading-style access’ to any wealthy interest around the world.

Immediately, the careers of lobbyists flourished, and as scholar Kingdon suggests, ‘members felt more and more harassed... more pressure from single interest groups...(and) more need to raise campaign money.’ Just after retiring from Congress, Senator Bumpers underlined this same sentiment:

In the 1970’s national associations by the dozens were setting up shop in Washington, right down to the beekeepers and mohair producers, and with them came a new threat to the integrity of the legislative process: “single issue” politics. These groups developed very harsh methods of dealing with those who crossed them. Suddenly, every vote began to have political consequences...We (Senators) have all come to reflexively calculate on every vote, significant or insignificant, (1) what 30-second television spot our next opponent can make of it, (2) the impact it could have on contributions, and (3) what interest group it might inflame or please.
– Sen. Bumpers 1999 - How Sunshine Harmed Congress

In the LRA’s wake, K-Street grew exponentially as special interests were able to participate directly in the drafting of legislation that would eventually become law. Indeed, the entire growth of the lobbying industry is highly correlated to the rise in transparency. And since 1970, money invested in lobbying Congress yields some of the world’s highest returns on investment (figure below). Equally important, perhaps, is that during this same period, the public’s trust in Congress has been in near free fall.


2. Party Leaders Get the Upper Hand

A strikingly similar transformation (and likely just as powerful an influence on legislation) also occurred between the members themselves, centralizing power into the hands of the few. With the increased accountability provided by the LRA, party leaders can now intimidate or cajole the rank-and-file members, turning every vote into a game of carrots and sticks. As a result, coveted committee seats, favorable hearings and other congressional perks are given only to those members who vote consistently with leadership. And freshmen legislators know that if they want their cherished legislation to reach the floor for a vote, they have to play ball. This power dynamic is likely the principal cause of soaring partisanship as all voting is dictated by fewer and fewer voices, and it appears to be a powerful driver of campaign finace as well, as committee chairs consistently raise far more money than other members.

Nowhere is this rise in power seen more clearly than with the Speaker of the House. Throughout history, the Speaker has wielded power, but open voting increased this power significantly. With significant control over the legislative calendar, committee assignments and the contents of omnibus bills (an obfuscating device that also correlates strongly with increased transparency), the Speaker applies these same newfound accountability measures to sway all legislation with simple threats and intra-house perks. Under the strong-armed whip/majority leader Tom DeLay (1995-2005), over 50% of the Republican procedural and amendment votes were unanimous, which means that on most votes, not one Republican member dared step out of line.

NOTE:  Overlooked by most scholars, intimidation (arm-twisting) appears to be the predominant force used by both interest groups (like the NRA) and members of Congress to influence legislators. It seems likely to effect legislation more than the common scapegoat of campaign finance. Unlike campaign finance, intimidation is often vastly less expensive and one threat can directly influence all members of Congress (even inadvertently). More importantly, many forms of intimidation are legal, so even soft-spoken Speakers, like John Boehner, make their ultimatums comfortably in front of the rolling cameras of the press.


3. The President Gets the Upper Hand

This same pattern can be reapplied endlessly. A more accountable Congress yields increased power to anyone who can apply pressure via threats or perks. This includes the President. During close votes on important bills, members of Congress receive calls from the President pressuring them to rethink their position. At 2am on November 22, 2003, George W Bush made such calls from Air Force 1, to push Republican representatives to reverse their votes on Medicare Part D, one of the largest government expenditures in history. In the background, Barney Frank could be heard on the floor shouting “stop the arm-twisting,” a congresswoman was crying from the pressure, other members left the chamber to hide, and months later it was determined there were bribery attempts, threats and suffocating controls imposed by the rules committee.

When voting is secret, those voting are free to vote their conscience. In Congress, this means that secret voting eliminates all ability to intimidate or bribe members of Congress. This checks the powers of all special interests, including the Speaker, the President and the enormous partisan powers of party and PACs. By opening the vote, the executive branch gains enormous power over the legislature, and this becomes especially dangerous when the sitting President (as George Bush was in 2003) is seeking re-election.


4. Constituents Lose Ground

(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.
– Fenno 1976 - House Members in their Constituencies

While special interests and others inside government gain enormous powers with the direct accountability provided by transparency, the reverse is true for constituents. Indeed, legislation and legislators’ attention are zero-sum games. As special interests and others can now directly threaten and mandate members, hence demanding more time, attention and legislation, constituents (who cannot directly threaten members) lose ground. This happens even inside Congress as even the members with the best intentions, are compelled by leadership to vote along party lines.

These outside pressures can be seen in the recommended schedule below. As shown in the image, a member is likely to spend 5 hours a day pleading with wealthy special interests, 2 hours a day inside committees under the pressures of the Speaker and other intra-governmental special interests and just 1 to 2 hours a day chatting with ‘constituents’ (more on them later).

Importantly, none of these call-time conversations are made transparent, and there is likely no way to open them to increased public scrutiny. This is because members of Congress aren’t prisoners, as such they could easily interact with special interests anywhere, at any time (in bars, the gym, their house, by phone, in bathrooms, etc). Nevertheless, these conversations are essential to the existence of a legislator, and they dictate policy, bend legislation, and influence all of the thousands of budget items under congressional jurisdiction. The trouble is, because of the increased accountability provided by open voting, they are no longer conversations in which the representative has the upper hand. And with thousands of budget items a year and thousands of calls/meetings being made, this begins to resemble a form of ‘legislation for sale.’ Worse, as all budgeting is by its very nature subjective and slippery (more on this later), untraceable corruption can exist in each of the thousands of budget items, even under strict transparency regimes (and likely because of strict transparency regimes).

‘Call time’ is not time spent calling your family, or think tank experts, or ordinary constituents. It’s time spent calling donors. Strategic outreach is, of course, also time you can spend with donors, and if your constituent visits include constituents who are donors, then all the better!
– Ezra Klein 2013 - The Washington Post

But there’s hope right? 1 to 2 hours a day are spent with constituents. But who are these constituents? Many of them are brought in by the same lobbying groups that are on the phone with members just a few hours before, pushing the same biased agenda. And the rest of them are hardly average constituents. Like most interest groups, these constituents often have specific agendas they are pushing, and are likely to represent just a tiny fraction of the member’s jurisdiction. Indeed, outside of holding a well-attended vote on each and every issue, it appears impossible for a member to gauge the true intentions of their constituency (even expensive polling efforts are proving more faulty each year). So as members spend more and more time with narrow interests, they have less and less time to ponder the repercussions on the greater constituency or even the nation’s common good.

How Sunshine Benefits the Powerful at the Expense of the Poor and the Middle Class

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

Ironically, the ability for interest groups (and others) to reward or punish legislators, relies entirely on high levels of transparency and accountability. As such, the more open a legislature, the easier the work of a special interest becomes. In just seconds, Big Pharma and Big Oil can scan the congressional record (tens of millions of pages), searching for just a handful of key terms that affect their narrow industry. As a result, they can distill this seemingly impossible amount of information into just a dozen or so key lines of legislation. Then, they can draft legislation, incentivize a congressman to drop it into the hopper, and precisely monitor the individual votes and actions of each legislator as the legislation moves forward. If any congressman steps out of line (at any step of the legislative process), these pressure groups get rough, going after that legislator with force.

While this process is much more direct than voting, it is hardly democratic. Indeed, it appears that increased transparency lays the foundation for oligarchy, as the greater the resources the special interest has, the more accountability they can unleash. So while the NRA or Big Oil can twist arms and change votes, these same levers of power are not available to the average constituent. Indeed, the average constituent is the polar opposite of a powerful special interest in two fundamental ways, and these differences are highlighted by the two following problems:

1. Transparency Benefits Special Interests

Unlike special interests, the average constituent is not likely focused only on one narrow issue. Instead, constituents are concerned about corruption in any aspect of government and therefore maintain broad interests throughout. As such, a constituent is better described as a general interest. But, having a broad set of interests results in a marked disadvantage when it comes to monitoring Congress. Indeed, unlike the NRA or Big Oil, general interests are unable to quickly scan legislation by searching for just a handful of key terms. Instead, a vigilant constituent is burdened with millions and millions of pages of hearings, amendments, summaries and legislation as each line could be the source for corruption.

More importantly, like a Facebook post, the congressional record is hardly a source of reliable or complete information. By their very nature, even the most transparent hearings and debates include omissions, grandstanding and political bias. And there are those who suggest that the more transparent the proceeding, the more of these problems there are (quote below). As such, constituents are faced with the Brobdingnagian task of not just reading the dense legalese, but also scrutinizing each of the millions of pages with an eye for inaccuracies, bias and omission (wherein each line could take months or more to substantiate).

Disclosure also induces policymakers to distort the process of information gathering and evaluation. In contrast, when no information can be disclosed, the government has no incentive to manipulate information. Secrecy is therefore effective at protecting the integrity of the decision-making process.
– Patacconi, Vikander 2013

Further, each of the thousands of budget numbers are impossible to verify, as they can only be, at best, subjective. It is impossible to prove that the allotted $372 million for the Justice of the Interior is appropriate amount when a number twice as high or half as much could be argued and supported by the same congressional budgeting process. This absolute subjectivity means that it is likely impossible for constituents (even those with extensive resources and time) to comb through legislation for corruption. While absurd, this claim is well supported by the notion that scholars insist that corruption is endemic and pervasive but very little corruption is actually found or prosecuted. This can clearly lead to hopelessness as evidenced by the remarkably little attention citizens pay to congressional voting and legislative actions. It appears, therefore, that legislative transparency greatly benefits special interests while, at the same time, only overwhelms and confuses constituents. Indeed studies show that excessive information, dumped wholesale on constituents, clouds understanding and distorts decision-making. Political scientist, Francis Fukuyama expresses this informational asymmetry clearly:

The typical American solution to perceived government dysfunction has been to try to expand democratic participation and transparency. Almost all of these reforms failed in their objectives of creating higher levels of accountable government. The reason is that democratic publics are not in fact able by background or temperament to make large numbers of complex public policy choices; what has filled the void are well-organized groups of activists who are unrepresentative of the public as a whole. The obvious solution to this problem would be to roll back some of the would-be democratizing reforms, but no one dares suggest that what the country needs is a bit less participation and transparency.
– Francis Fukuyama 2014 - Political Order and Political Decay

2. Accountability Benefits the Wealthy & Powerful

A donor who gives $100,000 gets a lot more free speech than the assembly-line worker.
– Sen. Bumpers 1999 - How Sunshine Harmed Congress

It doesn’t take much imagination to realize that special interests and other powerful groups can hold members of Congress accountable. The trouble is, few if any, scholars seem to acknowledge this. In perhaps the greatest of oversights, the word ‘accountability’ is mistakenly associated exclusively with the people (who, ironically, have the least power to use it). This strange paradox is manifest even in Apple’s dictionary definition of ‘accountable.’

Indeed, as we’ve suggested, accountability is strongly dependent on wealth and power. While average constituents are limited to just their vote, special interests can apply direct pressure at any time of the year via the media or with finance. Even large constituent groups (i.e. the 99%ers) lack the resources to bribe or intimidate legislators in the same fashion as Big Oil, the NRA and others. This is confirmed by various angles of research which suggest that voting is a remarkably diluted, imprecise and indirect tool, and citizen-based accountability is exceedingly difficult and rare.

The American system does not make it easy for citizens to hold elected officials accountable for governmental decisions.
– Douglas Arnold 2004 – “Congress, Press & Accountability”

This massive asymmetry of power can also be intuited from the ease of access given to these powerful groups. While individuals may struggle for even a few minutes of time with their representatives, special interests and large donators can expect to be on the receiving end of members’ phone calls and letters. And while voters have very little incentive to spend the entire year scouring the congressional record partly because they have little ability to hold member’s accountable, the opposite is true for large corporations who pour millions into aggressive lobbying campaigns confident that their efforts can produce billions of dollars worth of tax exemptions or subsidies. This means that increased accountability measures should always benefit the wealthy and harm the middle class and the poor.

The end result of all this lobbying...is a government so in hock to special interests that it has little money left to meet the general interest...the utilities doled out more than $10 million in campaign contributions to insert a provision that will end up saving them $19 billion.
– Alex Raskin, LA Times 1994

As seen, the transparency and accountability problems are intimately intertwined. Because of increased transparency, special interests can quickly gather all the information they need (information asymmetry), and with that information they are uniquely able to hold members accountable (asymmetry of power). Each problem, in turn, strengthens the other and together they suggest a clear path to the oligarchy suggested by the New Yorker’s coverage of the work of Gilens and Page. More importantly, these two problems appear to be fatal flaws with two of the most fundamentally misunderstood and poorly analyzed policy agenda points of the last hundred years. It is shocking to consider that the wholesale the embrace of increased transparency appears to be completely unsupported by evidence, research or data. And indeed (as Fukuyama mentions above), it is hard to imagine a political reform that calls for less transparency. So instead of diminishing the problem, activists and scholars are insisting on measures that would appear to increase corruption, partisanship, campaign finance and intimidation. As a result we would expect problems like the debt, income inequality, and climate change to soar in their wake.

Sources: CQ Quarterly analysis of congressional campaign finance, Piketty & Saez's research on inequality, McCarty's work on partisanship, and public roll call data.




The Video

On Nov 21st, 2016 in the Carr Center at Harvard University we presented our research on the overwhelmingly negative aspects of transparency and accountability in all legislatures. We focused on the dynamics of representation that emerged out of the 1970 Legislative Reorganization Act. By tilting legislation starkly in favor of powerful interest groups, transparency has likely been a driver of a number of societal ills including increased incarceration rates, debt, climate change, bank failures, income inequality, partisanship etc. Further, the internal gamesmanship wrought by transparency has also crucially degraded the legislative process and turned all negotiations into arms races.



Open meetings, open rules, and unlimited recorded votes seemed like good ideas when they were proposed, and they were backed by Common Cause and others who sought to reduce the power of special interests. Unfortunately, these reforms were based on a faulty understanding of the mechanisms that allow for citizens’ control. We now know that open meetings filled with lobbyists, and recorded votes, on scores of particularistic amendments, serve to increase the powers of special interests, not to diminish them.
– Douglas Arnold 1990 - The Logic of Congressional Action

The
1970
Legis­lative
Reorgan­ization
Act

The unheralded law that thrust transparency on Congress and opened the floodgates for lobbyists in Washington DC



The Legislative Reorganization Act of 1970

This landmark legislation launched the congressional reforms of the seventies, transforming the institution more than any event or series of events since the overthrow of Speaker Cannon
– Wolfensburger 2000 'Congress & The People'

The Legislative Reorganization Act of 1970 (Pub.L. 91–510 pdf | wikipedia) was an act of the United States Congress to “improve the operation of the legislative branch of the Federal Government, and for other purposes.” The act focused mainly on the rules that governed congressional committee procedures, decreasing the power of the chair and empowering minority members, and on making House and Senate processes more transparent. Almost as a second thought, they added rules for recorded votes and broadcasting of committees.

Key Sections and Clauses

Here is section 104, clause 27b, the actual text that changed the way the House of Representatives vote:

PUBLIC ANNOUNCEMENT OF COMMITTEE VOTES SEC. 104. (b) Clause 27(b) of Rule XI of the Rules of the House of Representatives is amended by adding at the end thereof the following: "The result of each rollcall vote in any meeting of any committee shall be made available by that committee for inspection by the public at reasonable times in the offices of that committee. Information so avail- able for public inspection shall include a description of the amendment, motion, order, or other proposition and the name of each Member voting for and each Member voting against such amendment, motion, order, or proposition, and whether by proxy or in person, and the names of those Members present but not voting. With respect to each record vote by any committee on each motion to report any bill or resolution of a public character, the total number of votes cast for, and the total number of votes cast againstj the reporting of such bill or resolution shall be included in the committee report."

Here is section 103 and 133b, the actual text that changed the way the Senate votes. It is important to note, that while the wording looks the same as the House version above, the difference was much less substantial, because the Senate did not have the ability to congragate in the ‘Committee of the Whole.’

OPEN COMMITTEEE HEARINGS
SEC. 103. (a) Section 133(b) of the Legislative Reorganization Act 60 Stat. 831. of 1946 (2 U.S.C. 190a(b)) is amended by inserting immediately after" ( b ) " the following: "Meetings for the transaction of business of each standing committee of the Senate, other than for the conduct of hearings, shall be open to the public except during executive sessions for marking up bills or for voting or when the committee by majority vote orders an executive session.". (b) Clause 26 of Kule X I of the Rules of the House of Eepresenta- tives, as amended by section 102(b) of this Act, is further amended by adding at the end thereof the following new paragraph: " ( f ) Meetings for the transaction of business of each standing committee shall be open to the public except when the committee, by majority vote, determines otherwise. This paragraph does not apply to open committee hearings which are provided for by paragraphs (f) (2) and (g) (3) of clause 27 of this Rule."

Here is section 116, the actual text that opened the committees to electronic media, television, radio, etc.

BROADCASTING OF COMMITTEE HEARINGS
SEC. 116. (a) Section 133A(b) of the Legislative Reorganization Act of 1946, as enacted by section 112(a) of this Act, is amended by adding at the end thereof the following: "Whenever any such hearing is open to the public, that hearing may be broadcast by radio or television, or both, under such rules as the committee may adopt."

For more references and articles on the LRA1970 see the articles in the references section below. In particular, here and here and here.


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