“Just as important as transparency is the ability of lawmakers to effectively work on behalf of
those who sent us here.”
—Mark Schoesler, Washington State Senate Minority Leader, 2018, arguing against transparency
A 2019 research paper (link to the preprint), Does Transparency Inhibit Political Compromise?, focuses on this topic. As discussed here recently, lack of reasonable transparency in Supreme Court operations leaves the institution open to charges of unduly politicizing the rule of law at the expense of legal principle and the public interest. The criticism of politicizing laws at the expense of the public interest also applies to the process of legislation. The court claims it needs to operate in secrecy for "obvious reasons", but no significant reasons appear to exist. The judges just don't want what they actually do to be scrutinized. That's the reason.
The argument that closed-door meetings are needed for dialogue and negotiation because that might not happen in public view. This sentiment is common among politicians throughout the world. The paper's authors point out that despite this standard defense of opacity, there is no research that directly measures whether that argument has any empirical support. Thus the question of whether transparency laws really do constrain politicians' capacity to negotiate and compromise is unanswered. The researchers looked at whether American public access to the legislative process limited indicators of political compromise, specifically productivity, polarization, partisanship, policy change, and budget delay. The researchers directly tested whether governmental transparency and efficiency are mutually exclusive.
Legislators claim that what they do needs to be shrouded in secrecy, including negotiation to reach compromise. Since congress and some or most state legislatures no longer operate on the basis of compromise, that defense of opacity falls to actual reality.
The preprint paper's abstract is blunt.[1] Based on their analysis, secrecy is not necessary for compromise:
Politicians and scholars contend that governmental transparency reforms constrain politicians’ capacity to negotiate and compromise in the pursuit of policy goals. However, existing research primarily emphasizes only that governments are strategic in adopting these reforms; whether lawmakers actually incur the alleged costs of transparency remains an open question. We investigate this issue in the context of American state legislatures, many of which have become exempt from “sunshine laws” in recent decades. Legislators justify these exemptions by claiming that transparency impedes deal-making and coalition-building, producing gridlock. We leverage variation in the timing of sunshine law adoptions and exemptions to identify their effect on legislative productivity, polarization, partisanship, policy change, and budget delay. Our analyses refute legislators’ argument for opacity; we report precisely-estimated negligible and contradictory effects of sunshine law exposure. We conclude that transparency does not inhibit political compromise. Legislative deliberation is equally or perhaps more effective under open governance requirements.
Although common sense is an essentially contested concept, and people will bicker forever over it most of the time (~97% ?), it seems reasonable at ask, what does your common sense tell you about the reasons for needless opacity in government? At this point, what David Cay Johnston had to say in 2003 in his book Perfectly Legal about how things work bears repeating:
Sen. John Breaux (D-LA) said that "instead of drilling for oil and gas, Exxon was drilling the tax code, looking for ways to find more and more tax shelters." Senator Grassley said that "what hit me the most was the moral fiber of the people involved," who he said displayed "unbridled greed and blatant disregard for the law of fairness."
Some politicians warn off the public by advising us fool taxpayers that politics is like making sausage. If you have a weak stomach, don't look at how we do our business. In other words, you don't ask and we won't tell.
My common sense tells me two things: First, some (most?) politicians want to operate in secrecy to hide their own immorality, hypocrisy, corruption, incompetence, ignorance, sheer stupidity, culpability[2] and/or betrayal of the public interest. They want to keep their bloody sausage fingerprints on the murder weapon from ever being found.
Second, forcing in as much transparency as reasonably possible would make the sausage making a lot less disgusting because the sausage makers would know they are being watched and their lies, corruption, culpability for failure and etc., are more likely to be found out and come back to bite them. Transparency should apply to both politicians and the lobbyists who often come with cash in hand demanding gifts from legislators. The public needs to see as much of this as possible.
So, do you want to see more or less of the sausage making?
Footnotes:
1. The final published paper's abstract has been softened, presumably by peer review. It reads as follows:
Governments around the world face an apparent tension when considering whether to allow public access to the governing process. In principle, transparent institutions promote accountability and good governance. However, politicians and scholars contend that such reforms also constrain politicians' capacity to negotiate and compromise, producing inefficiency and gridlock. This argument—that transparency inhibits compromise—is widely accepted, but rarely empirically tested. We develop a theoretical framework around the claim and evaluate it in the context of American state legislatures. We leverage temporal variation in state “sunshine law” adoptions and legislative exemptions to identify the effects of transparency on several observable indicators of compromise: legislative productivity, polarization, partisanship, policy change, and budget delay. Our analyses generally do not support the argument; we mostly report precisely estimated negligible effects. Thus, transparency may not be the hindrance to policy making that conventional wisdom suggests. Effective governance appears possible in state legislatures even under public scrutiny.
2. Regarding culpability, radical right Senator Ben Sasse (R-NE) commented in 2018 about the gutless US Senate and why it produces such a poor quality product:
“. . . . . the people don't have a way to fire the bureaucrats. What we mostly do around this body is not pass laws. What we mostly decide to do is to give permission to the secretary or the administrator of bureaucracy X, Y or Z to make law-like regulations. That’s mostly what we do here. We go home and we pretend we make laws. No we don’t. We write giant pieces of legislation, 1200 pages, 1500 pages long, that people haven’t read, filled with all these terms that are undefined, and say to secretary of such and such that he shall promulgate rules that do the rest of our dang jobs. That’s why there are so many fights about the executive branch and the judiciary, because this body rarely finishes its work. [joking] And, the House is even worse.”
Secrecy allows Senators to avoid culpability for their own bad legislation.
"For political players, a lack of transparency results in a deep sense of
security, freedom from accountability
and a good path get what one wants" (Germaine)
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