The Limits of Legislative Transparency

Sarah A. Binder

Editor’s Note: On the topic of transparency in government, Sarah Binder pushes back against the recent paper by Bass, Brian and Eisen. Binder argues that her recent work with Frances Lee does not claim that transparency caused gridlock, but instead that secrecy in negotiation—among other tools—could increase the likelihood of success in negotiating.

In “Why Critics of Transparency Are Wrong,” Gary Bass, Danielle Brian, and my colleague Norm Eisen make the case for keeping the doors open when lawmakers attempt to negotiate deals in Congress. In doing so, they take me and my co-author Frances Lee to task for suggesting that transparency yields gridlock: “Open government critics claim that transparency has made it impossible for Congress to get anything done.”

Contrary to Bass, Brian, and Eisen’s recounting of our work about deal-making in Congress, that is not our claim. We do not argue that transparency increases the likelihood of deadlock. Like Bass, Brian and Eisen, we know (and have argued for instance here, here, and here) that partisan, electoral, and institutional forces collectively shape the prospects for major policy change in the contemporary Congress. Unified party control with a filibuster proof majority helped to generate a remarkably productive 111th Congress in 2009-10; split party control of Congress contributed to a remarkably deadlocked 112th.

Instead, in “Making Deals in Congress,” Frances and I assess whether standard tools of negotiating in other contexts might prove relevant and effective in facilitating successful negotiation of “win-win” deals in Congress. These standard tools include secrecy, penalty defaults for inaction, and repeated interactions across key players. We recognize that transparency has many normatively desirable properties. Our point is simply that transparency entails trade-offs, imposing direct costs on successful deal-making. This is especially true given today’s exceptionally polarized and competitive political parties and given the information environment in which lawmakers work. As we observed in our piece, greater public attention to Congress today combined with polarized parties increases the incentives of lawmakers to adhere to party messages. Such partisan constraints on lawmakers are rarely conducive to setting aside differences and negotiating a deal.

Bass et. al. also argue that “back-room wheeling and dealing is just as possible now as it ever was.” We suspect that the opposite is true. Pressures on politicians are more immediate and intense than they were in the past. That makes it harder (though surely not impossible) for lawmakers to engage with each other directly, especially across party lines. And as we argue, such interactions out of the public eye are critical for crafting integrative policy deals, agreements in which the negotiating coalitions care unequally about different parts of the deal. Moreover, most integrative solutions are conditional on completion of the entire deal. As the common mantra goes, “Nothing is agreed to until everything is agreed to.” Leaking unpopular parts of a deal—without linking it to what your party really cares about– is likely to weaken the viability of the leaked provision and prospects for a broader deal.

Ryan Lizza’s reporting on the private, bipartisan negotiations that generated the Senate’s initial immigration bill drives home the potential impact of limiting transparency. Closing the doors facilitated the crafting and knitting together of separate agreements that secured the support of business, labor unions, agribusiness, the tech industry, and Hispanic groups.Had, for example, Democrats prematurely leaked the agreement with Republicans about a path to citizenship without linking it to an agreement on border security, Republicans would have faced enormous pressures from their base to derail negotiations. Nor did private negotiations foreclose highly transparent committee and floor considerations of the bill. Bass et. al. conclude that “keeping information secret only serves to keep power in the hands of a few.” Far from empowering special interests at the public’s expense, closing the Senate doors arguably better served the public interest (at least as judged by the bipartisan, supermajority vote for passage on the Senate floor).

To be sure, we are not arguing that secrecy is sufficient for securing compromise. As we noted above, we are not so naïve as to misunderstand the broader conditions that facilitate lawmaking in Congress. Closeting House lawmakers behind locked doors would not have made a difference. (Indeed, a bipartisan group formed, but disbanded before making progress on a deal.) Standard tools of negotiations have limited impact if a legislative majority party prefers the status quo to a bipartisan deal. But curtailing transparency can sometimes be a necessary ingredient when electoral and partisan incentives entice lawmakers to cross the threshold to forge a deal.