Saturday, April 27, 2019

When Special Interests Play in the Sunlight

There's a common presumption in American politics that special interests are more likely to hold sway during secret negotiations in back rooms, while the broader public interest is more likely to win out in a transparent and open process. People making this case often quote Louis Brandeis, from his 1914 book Other People's Money: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants ..." This use of the sunlight metaphor wasn't original to Brandeis: for example, James Bryce also used it in an 1888 book The American Commonwealth. 

But what if, at least in some important settings, the reverse is true? What if public processes that are more public actually result in greater power for special interests and less ability to find workable compromise solutions? James D'Angelo and Brent Ranall make this case in their essay "The Dark Side of Sunlight: How Transparency Helps Lobbyists and Hurts the Public," which appears in the May/June 2019 issue of Foreign Affairs. Responding to the Brandeis metaphor, they write: "Endless sunshine—without some occasional shade—kills what it is meant to nourish."

The underlying argument goes something like this. Many of us have a reflexive belief that open political processes are more accountable, but we don't often ask "accountable to who"? It's easy to assume that the accountability is to a broader public interest. But in practice, transparency means that focused special interests can keep tabs on each proposal. If the special interests object, they can whip up a storm of protests. They also can threaten attempts at compromise, and push instead toward holding hard lines and party lines. Greater openness means a greater ability to monitor,  to pressure, and to punish possible and perceived deviations.

In US political history, the emphasis on sunlight is a relatively recent development. D'Angelo and Ranall point out:

It used to be that secrecy was seen as essential to good government, especially when it came to crafting legislation. Terrified of outside pressures, the framers of the U.S. Constitution worked in strict privacy, boarding up the windows of Independence Hall and stationing armed sentinels at the door. As Alexander Hamilton later explained, “Had the deliberations been open while going on, the clamors of faction would have prevented any satisfactory result.” James Madison concurred, claiming, “No Constitution would ever have been adopted by the convention if the debates had been public.” The Founding Fathers even wrote opacity into the Constitution, permitting legislators to withhold publication of the parts of proceedings that “may in their Judgment require Secrecy.” ...

One of the first acts of the U.S. House of Representatives was to establish the Committee of the Whole, a grouping that encompasses all representatives but operates under less formal rules than the House in full session, with no record kept of individual members’ votes. Much of the House’s most important business, such as debating and amending the legislation that comes out of the various standing committees—Ways and Means, Foreign Affairs, and so on—took place in the Committee of the Whole (and still does). The standing committees, meanwhile, in both the House and the Senate, normally marked up bills behind closed doors, and the most powerful ones did all their business that way. As a result, as the scholar George Kennedy has explained, “Virtually all the meetings at which bills were actually written or voted on were closed to the public.”
For 180 years, secrecy suited legislators well. It gave them the cover they needed to say no to petitioners and shut down wasteful programs, the ambiguity they needed to keep multiple constituencies happy, and the privacy they needed to maintain a working decorum.
But starting in the late 1960s and early 1970s, we have now had a half-century of experimenting with more open processes. How is that working out? When greater transparency in Congress arrived in the 1970s, did that mean special interest had more power or less? There's a simple (if imperfect) test. If special interests had less power, then it would not have been worthwhile to invest as much in lobbying, so more transparency should have been followed by a reduction in lobbying. Of course, the reverse is what actually happened: Lobbying rose dramatically in the 1970s, and has risen further since then. Apparently, greater political openness makes spending on lobbying more worthwhile, not less.

D'Angelo and Ranall argue that a number of the less attractive features of American politics are tied to the push for greater transparency and openness. For example, we now have cameras operating in the House and Senate, which on rare occasions capture actual debate, but are more commonly used as a stage backdrop for politicians recording something for use in their next fundraiser or political ad. When public votes are taken much more often, then more votes are also taken just for show in an attempt to rally one's supporters or to embarrass the other party, rather than for any substantive legislative purpose. Politicians who are always on-stage are likely to display less civility and collegiality and greater polarization, lest they be perceived as insufficiently devoted to their own causes---or even showing the dreaded signs of a willingness to compromise.

As D'Angelo and Ranall point out, it's interesting to note that when politicians are really serious about something, like gathering in a caucus to choose a party leader, they use a secret ballot. They write: "Just as the introduction of the secret ballot in popular elections in the late nineteenth century put an end to widespread bribery and voter intimidation—gone were the orgies of free beer and sandwiches—it could achieve the same effect in Congress."

It's important to remember that here are wide array of forums, step-by-step process, and decisions that feed into any political process. Thus, the choice between secrecy and transparency isn't a binary one: that is, one doesn't need to be in favor of total openness or total secrecy in all situations. D'Angelo and Ranall make a strong case toward questioning the reflexive presumption that more transparency in all settings will lead to better political outcomes.