By Mark Strand and Timothy Lang
The Joint Select Committee on Deficit Reduction-also known as the Super Committee-has been criticized for its purported secrecy. Senator Dean Heller (R-NV) introduced legislation that would have opened up the process more. He and five colleagues also sent a letter to their body’s Majority and Minority Leaders calling for the same. Outside the Congress, others have called for more transparency as well. On Halloween, the Sunlight Foundation, a transparency watchdog group, decided to “haunt” the offices of the Super Committee Members, urging them to conduct the panel’s business in a more public manner.
Crafting this crucial piece of legislation in the open would have been an unqualified good, right? After all, transparency is a hallmark of democracies.
Well, not exactly. There are great benefits to an open process. However, there are still some situations where greater openness is detrimental to good governance. Here we will consider the benefits and defects of transparency and what justified the Super Committee’s secrecy.
Today it is de rigueur, maybe even banal, to demand complete transparency. When the Democrats took control of Congress in 2006, the new Speaker, Representative Nancy Pelosi, famously pledged to “drain the swamp”, making hers “the most honest and open Congress in history”. Likewise, President Barack Obama, early in his administration, promised the same and issued a memorandum beginning with the auspicious line, “My Administration is committed to creating an unprecedented level of openness in Government”. On the other side of the aisle, in his inaugural address as Speaker of the House, Representative John Boehner assured his colleagues and the nation that the rules for the Congress would place “an emphasis on real transparency, great accountability, and a renewed focus on the Constitution”.
The repeated calls for transparency are a consequence of our democratic values as enshrined in the Constitution. The simplest, and perhaps, most compelling argument for transparency is that it allows for the public and Members to debate an issue. You can’t debate an issue when you don’t even know what the issue is. Who will be taxed? Is defense going to be cut? Will Medicare payments be cut? If we can’t know what is under discussion, we can’t know what the effects of the bill are. If we don’t know what the effects of the bill are, we won’t know whether it will be in our interest or not. If we don’t know whether it is in our interest, then we can’t petition for redress, a crucial right protected by the First Amendment to the Constitution. A corollary is that the individual Members who are not involved with crafting the legislation will be unable to judge whether this is in their constituents’ interests or whether it represents their constituents’ will.
In addition to guarding against unrepresentative or simply imprudent legislation, openness also protects against corruption. No smoke-filled back room, no smoke-filled back room deals. (This is only theoretically true. Opening the process will not solve all our problems-anything can be corrupted.)
Acknowledging these benefits, we can turn instead to the handicaps introduced by utter openness or the benefits of a closed process. This is harder to defend. Thankfully, transparency in government is valued so greatly that it is hard to imagine that it could ever be bad. That being said, it seems that transparency is actually a good that is only generally desirable, but not always prudent or possible. Very few would say that all government transactions should be open to the public. For instance, national security issues are an obvious example of topics that should be kept classified. But what about something less obvious-say, for example, the Joint Committee for Deficit Reduction?
In our political system today there are two trends that make secrecy a necessary evil: showmanship and partisanship. Showmanship has been and always will be an important part of politics. Congress is not immune to it. Over a hundred years ago, President Woodrow Wilson, in his scholarly work Congressional Government, appropriately described the situation thus: “Congress in session is Congress on public exhibition, whilst Congress in its committee-rooms is Congress at work”.
Congress’ “public exhibitions” would be fine if the Members were performing for John Smith and Jane Doe. But they are on display for John Democrat and Jane Republican. The country’s partisanship turns the tendency towards showmanship into a vice. We have written extensively in Surviving Inside Congress and elsewhere on our blog about the pervasive partisanship affecting the nation. Members are beholden to voters who are partisans. The vast majority of Congressional districts have generally been designed to ensure that a given party has a comfortable majority, which leaves that seat in their control. In such cases, to win a seat, a candidate need only to appeal to the party base, meaning the Member can be left of center, if a Democrat, or right of center, if a Republican. To make matters worse, in the primaries, when such Democrats are challenged from the left and when such Republicans are challenged from the right, they are moved further away from the mainstream. Consequently, Members constantly calculate their actions to appeal to the wings, not the center – in short, in over 75 percent of congressional districts members are more worried about party primaries than their general election challengers.
If the Super Committee had tried to craft the bill publicly, it probably would have fallen prey to the tendencies towards showy partisanship that high-profile politicking does. The Members won’t be up for re-election for a few years (Murray, Portman and Toomey), or are retiring (Kyl), or are mostly safely ensconced in their seats (everyone else), so their relative safety should have given them freedom to make unpopular decisions. However, at the same time, they had to look out for their colleagues as well, so there was still some pressure on them to perform. Even with the secrecy, there were always reports that the Super Committee has not made progress, despite some signs of optimism. Is it likely that they would have been more productive in front of the cameras? Not really. The Daily Beast reports that some involved with Super Committee had come to a conclusion similar to this one: “But people close to the process say the velocity of the soundbite culture on Capitol Hill has forced the real action to go behind the scenes, where controversial ideas can be floated, discussed, and digested without becoming the target practice for pundits on cable news and, in turn, outside groups looking out for their interests”. A Democratic aide suggested as much: “The only way we’re going to do this is if they can’t be on TV all day long”.
If there is any doubt as to what the effect of a public show would have looked like, consider the February 2010 “Healthcare Summit” held a month before passage of the Patient Protection and Affordable Care Act. In this act of political showmanship, President Barack Obama and Congressional Republicans and Democrats came together to discuss the reforms on the Democrats’ agenda; the results were not pretty. Afterwards, one Reuters report succinctly summarized the show: “What is certain is that there was little progress toward generating a greater bipartisan consensus around a reform of the mammoth healthcare industry”. The President himself admitted that they could not have another such session because of time constraints. “We cannot have another year-long debate about this”, he said. If the Democrats had decided not to proceed without bipartisan support, it probably would have taken a lot longer than a year. In the end, the bill passed the House 219-212, will all the Republicans and 34 Democrats opposing it. This is not to say that the attempt at openness via the Healthcare Summit caused the one-sided vote. It’s just that the event did absolutely nothing to foster a consensus or produce a better bill.
Unlike the situation of the 111th Congress that passed healthcare reform, due to the power balance in the current Congress, the negative effects of secrecy could have been mitigated. Since each party controls one Chamber of Congress, the only way for the Budget Control Act, which established the Super Committee, to pass both bodies was for the membership to consist of an equal number of Republicans and Democrats from both the House and the Senate. Additionally, the parties have shared power: Representative Jeb Hensarling, a Republican, and Senator Patty Murray, a Democrat, are the co-chairs. To have secured a majority, the Members would have to have devised some plan that is equitable to both sides. If either or both sides had tried to work in any provisions which would have unfairly benefited a certain constituency, Member of Congress, or special interest, the other side could have withheld its votes, scuttling the whole deal.
In addition to the Super Committee’s structure, the same silence that garnered criticism might actually have protected it from questionable influences. At a public session, National Public Radio found that plenty of lobbyists were lined up for seats. The reason for the great interest is a little surprising. One lobbyist explained: “A: They theoretically have jurisdiction over everything. B: They’ve revealed nothing of what they’re doing”. Similarly, early last month, a Democratic lobbyist told the Politico, “There’s an obsession with intelligence gathering-whether it’s right or wrong-that’s what clients want”, suggesting the constraints lobbyists worked under. These limitations were made clear when lobbyist Gerald Cassidy told the same publication: “During my 42 years in Washington, this is the most closed-mouth committee that I’ve seen.” If they were hard pressed to find information about the Super Committee’s legislation, it seems unlikely that they would have been able to score any special deals or advance any untoward interests, which would have required the Members to make a greater commitment than simply providing information. It seems secrecy could have allowed the panel to produce a good bill.
If secrecy had secured the success of the Super Committee, the results would have been fully debated for one month by both the House and Senate before being voted on December 23. During that time every line of the text would have been examined by Members of Congress, staff, pundits, professors, think tanks, and average citizens. Nothing would have escaped public scrutiny.
Although there were some scanty indications that secrecy was aiding the work of the Super Committee, the news has turned depressing and it now seems it will not produce anything that benefits the country. A bipartisan joint committee with legislative jurisdiction is a completely new Congressional creation and the committee’s unprecedented secrecy has been another extraordinary aspect of this attempt to resolve our political gridlock. The panel was created only because Members are convinced that the process is broken and consensus cannot be found through the normal parliamentary channels. In the end, desperate times call for desperate measures: The panel has been secretive because it must be, not because anyone has wanted it to be. If something so extraordinary as the Super Committee did not make it work, it’s a little scary to think what it will take to force Washington to rein in America’s massive debt.
Mark Strand is the President of the Congressional Institute and Timothy Lang is a research assistant. The Sausage Factory blog is a Congressional Institute project dedicated to explaining parliamentary procedure, Congressional politics, and other issues pertaining to the legislative branch.