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Is Open Government a Barrier to Legislative Action?

“Closed-door interactions.” That’s what the American Political Science Association (APSA) has recommended as one way to tackle congressional inaction. An APSA task force suggests that less transparency in government has clear and actionable benefits which can bolster the ability of Congress to resolve difficult policy issues.

Less transparent government? When I came across this premise while researching a previous article on congressional negotiation, I was initially somewhat disturbed — shocked actually.

Are they suggesting a return to political horse-trading in the smoke-filled backrooms of an era past?

“Allowing negotiations to take place in private settings encourages pondering rather than posturing,” the task force claims.

Yet, even they agree that there are “serious democratic hazards” to be considered. Closed-door interaction is clearly at odds with transparency, accountability, and trust in a democracy.

Private deal-making in Congress is nothing new and to some extent is institutionalized in the political process. There are party caucuses and conferences, not to mention daily informal meetings where much of congressional business is discussed and negotiated. Congressional rules allow these to occur away from the public eye.

Yet, these closed-door meetings are just as often vilified by the media, the public, special interest groups, and even among politicians themselves, who take every opportunity to make partisan accusations based on any hint of non-transparency.

“The very word ‘secrecy’ is repugnant in a free and open society, and we are as a people inherently and historically opposed to secret societies, to secret oaths, and to secret proceedings.” said President John F. Kennedy in a 1961 speech. Vice President Al Gore, in his 2007 book The Assault on Reason, wrote:

“As long as the government’s actions are secret, it cannot be held accountable. A government for the people and by the people should be transparent to the people.”

The call for open government and transparency in government dates back at least to late 17th century Europe; to the days of John Locke, Voltaire, and the French Revolution.

The Founding Fathers, however, recognized that open government had its problems and conducted sessions of the Constitutional Convention in secret. James Madison said that he did not believe that agreement on the constitution would have been possible had the proceedings been held in the open.

NYU professor of politics David Stasavage makes the point that:

“The case of the Constitutional Convention is particularly interesting, because there is solid evidence that the U.S. public broadly accepted the secrecy of its proceedings.”

Yet, debate on the issue was strong, and the constitutional framers ultimately included the provision (Article I, Section 5) that “each House shall keep a Journal of its Proceedings, and from time to time publish the same.” But, the requirement for a “journal” did not dictate a recording of debate. Congressional proceedings were not open to the public until the Senate voted to allow this in 1794, as a result of considerable outside pressure. Today, C-SPAN provides gavel-to-gavel coverage of most floor debate.

The call for transparency has been bolstered by the Freedom of Information Act (FOIA) of 1966, the Government in the Sunshine Act of 1976, and other legislation on federal, state and local levels. The “sunshine laws” provide that: “every portion of every meeting of an agency shall be open to public observation.” There are exceptions to the requirements and Congress itself is not considered an “agency,” yet most congressional committee hearings are open to the public.

Most recently, President Obama issued two memoranda on his first day in office in 2009, pledging a commitment to open government and accountability. Quoting Justice Louis Brandeis, Obama reiterates: “Sunlight is said to be the best of disinfectants.”

Clearly today’s environment has many safeguards along with underlying support for the democratic ideal of an open government. So, how can the APSA recommendation for less transparency be reconciled with this?

How can we balance closed-door interaction with open government in a democracy?

Any suggestion for a reduction in open government is not something I would expect current members of Congress to readily defend. Most senators and representatives I contacted preferred not to comment.

Some take an especially harsh view of closed-door meetings, at least in public. Former Senator Jim DeMint, who resigned from Congress last year to head the conservative think tank The Heritage Foundation, sharply criticized how “broad sweeping overhauls are conducted through closed-door meetings.” According to the former Senator, responsible legislating requires “complete transparency at every step,” and he denounced how recent legislation has been pushed through by those in power. Public posturing, it seems, does not end upon leaving elected office.

I also contacted former Senator Olympia Snowe, who has been a strong proponent of congressional bipartisanship. Snowe decided not to seek re-election in 2012 to continue her efforts from outside Congress.

In her recent book, Fighting for Common Ground, Snowe speaks of the formation of small coalitions — “Gang[s] of fourteen or eight or six” — where policy issues are discussed and worked out privately. These groups, a spokesperson for the Senator told me, were successful because of the fact they were conducted away from public view. Small group settings facilitate exactly what the APSA report recommends; partisan rhetoric can be left outside the door to produce results not otherwise possible.

Two members of the APSA task force also provided me with comments: Jane Mansbridge, its co-chair and professor of Political Leadership and Democratic Values at Harvard’s JFK School of Government, and Simone Chambers, professor of Political Science at the University of Toronto and one of the key contributors to the APSA report section on transparency.

Chambers says there is am ongoing “struggle between the public’s need to know as a cornerstone of democracy and the elites’ and representatives’ desire just to get business done and not be bothered.” Participants must be prepared to give “reasons and justifications for behind closed door deliberations.”

Now, there’s nothing inherently wrong with deal making; Congress does this on a grand scale. They must compromise and build consensus to legislate effectively. But, since transparency is an ideal of democracy, why not do it in the open? The problem is: deal making doesn’t work very well in public view; it stops the ability to negotiate in its tracks.

As Mansbridge explains:

“Advocates of greater democracy have traditionally pushed for greater transparency, but now we have to rethink. Now we have to ask in what contexts greater transparency is most worthwhile and in what contexts it is likely to have significant costs.”

The APSA report claims: “Political representatives and negotiation scholars agree that relatively private interactions behind closed door provide the moments, sheltered from publicity… in which opposing parties can share their perspectives freely and come to understand the perspectives of others.”

Chambers goes on to describe how “the knee jerk reaction that publicity and transparency is always the answer is, in reality, not always the answer.”

The APSA task force suggests four circumstances which can allow closed-door negotiating in a democratically acceptable context:

Some areas are more easily argued: cases impacting national security or financial markets for example. Other issues can be justified through agreements to make records public at a later date, though often these dates may need to be set beyond the life of political careers to be palatable
Clearly trust is an issue amid today’s historically low Congressional approval ratings. However, the trust issue, according to Chambers, is mainly a barrier in situations involving deep corruption which is not the case in the US today.

Mansbridge further supports the argument that trust is essential for public acceptance of privacy, yet adds:

“They don’t necessarily have to trust the other party, but they have to trust their own party, so that when their representatives in their own party say they need privacy to negotiate, the citizens have reason to believe them.”

Even in today’s highly skeptical political climate, it is still possible to get past lack of trust as a barrier.

Exclusion of interest groups and affected parties is a sure-fire way to result in claims of an illegitimate process.

This requires public airing of why the agreement was reached and why it was the best possible outcome. Details of “who said what” can be bypassed with more general justifications.

Without an opportunity for closed-door deal makings, we would not have had the recent Murray-Ryan budget compromise, or the negotiated end to the October 2013 government shutdown. Monumental historical reforms such as FDR’s New Deal of the 1930s, civil rights legislation of the 1960s, and tax reform of the 1980s were all at least partially the result of private negotiation; this is true even of the Constitution itself.

Jonathan Cohn of the New Republic suggested that the call for Congress to end private negotiating “would pretty much mean the end of legislation as we know it.” According to journalist and author Tish Durkin: “We should hope that our top leaders hold more top-secret meetings, and pray that they keep us in the dark about exactly who said exactly what.”

The bottom line is that backroom deal-making works. If we want government to function, we must allow our legislators to represent our interests, and to do this they must be allowed to negotiate in the manner most likely to succeed. We need to restore trust in the process and the structure of our system of government. Failure to allow this is a risk to our very system of democracy. Yes, even if this means some sacrifice in open government and transparency.