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The Value of Secrecy in Congress

photograph of C-SPAN floor vote TV coverage

During both of the most recent impeachments, an old argument resurfaced. Afraid of retribution, many spoke out to advocate a way Republican members of Congress could get rid of Trump and keep their own seats. They suggested that the impeachment vote in the House and the Senate should be done in secret. Republican voters would know some Republicans voted to convict, but the blame would be diluted, spread across all 50 or so Republican senators. And so each Republican senator would individually be unlikely to lose his or her seat.

But this raises a question: if it would be good to convict Trump secretly, why not make the votes on all sorts of controversial issues secret? The people would know what laws were passed of course, but no one would be allowed to see committee meetings. No congressional sessions or votes would be broadcast on TV. You would vote in your representatives and then for two, four, or six years, you would simply trust that they voted in the way that was best. Members of Congress could pass legislation that might be unpopular to their constituency, but important for the nation at large. And neither ordinary citizens nor lobbyists could influence the legislative process after election day.

Many, however, are horrified by this idea. Making acts of Congress secret would be akin to government by aristocracy, rule by the elites, not democracy. Transparency is vital because it allows citizens to accurately judge whether their elected representatives are actually representing them instead of simply voting their own interests.

Let’s consider the arguments on both sides here and see if we can develop a better understanding of the issue. What are the benefits of congressional secrecy? And, are the costs to democracy too severe?

The first reason why one might think congressional votes should be secret is because this secrecy would allow Congress to stop acting only along party lines. Congress is extremely partisan nowadays and this hasn’t always been the case. Furthermore, this unwillingness to cross the aisle leads to difficulties in Congress achieving popular political ends. For example, nearly 60 percent of Americans supported Trump being convicted and removed from office after the second impeachment trial. Even more Americans, including 64 percent of Republicans, support stimulus checks. But, no Republican members of Congress voted for Biden’s stimulus check, despite voting for Trump’s. And finally, a majority of Republicans support increasing the minimum wage, but Republican members of Congress vote against it when the issue is raised by Democrats. Voting against political opponents seems to be more important to members of Congress than passing popular legislation.

The fact of the matter is that Congress isn’t beholden to your average voter. Nor even the average voter from their party. Members of Congress are beholden to the partisans of their party because of the primary system. According to a study from the Social Science Research Council, primary voters tend to prefer politically extreme candidates. And if candidates can’t make it past the primaries, it doesn’t matter how popular they would be in the general election. (Some have suggested primaries are responsible for Trump’s nomination.) In any case, if Congressional votes were more often secret, congresspeople could give lip service to extremism in the primaries while looking to what’s best for the country when they actually vote. Those extreme partisans wouldn’t know who betrayed them. Thus, legislation that is broadly popular, but not popular among extreme partisans, could be passed and perhaps we’d be better off.

But, partisans and primaries aren’t the only reason Congress doesn’t pass popular legislation. Another problem congressional secrecy, especially in committee meetings, could solve is the influence of lobbyists and donors. As I have written elsewhere, money in politics is a seriously corrupting influence. Lobbyists and donors frequently control the legislative agenda. But, again, this hasn’t always been the case. The number of lobbyists skyrocketed in the 1970s with the passage of so-called “Sunshine Laws” meant to improve government transparency. Some of these are good: Freedom of Information Act requests allow the people to have access to a great deal of information about the operation of government that would be otherwise hidden from them. But, they also allowed lobbyists to flow in from the lobby through the previously closed doors of committee meetings. As is argued by the Congressional Research Institute (a think tank, not part of Congress), these laws “enormously enhanced the ability of ‘outside’ lobbyists and powerful entities to influence the legislative process,” and so they claim “all legislative transparency overwhelmingly benefits special interests and the powerful.”

Think of it this way: before, lobbyists and donors could monitor how congressional votes shook out. If particular members of Congress voted how the donors wanted, they would get more campaign donations, and if not, they wouldn’t. This influence has always been around. But since the passage of the Sunshine Laws, lobbyists can monitor the entire legislative process: they can write the legislation, follow along with congressional committee meetings to make sure no revisions are made they don’t like, and display their approval or disapproval to members of Congress throughout the process. Of course, ordinary citizens can do this too, but they tend not to have the resources to lobby as powerfully as massive corporations or billionaires. If the relevant “Sunshine Laws” were reversed, many of these problems would go away, and if congressional votes were made secret too, lobbying would become a very bad investment. Donors could spend money on lobbying and campaign donations and hope that the legislator feels pressured by it, but they would never be sure if it worked. Thus, the influence of money in politics would be diminished.

However, there remains an enormous counter-argument to making the acts of Congress secret. I have been making a very utilitarian case for secrecy. It would achieve better results for the American people. But that may not be the only thing that matters. One might argue that the ends aren’t the only things that matter; the means do too. Making the acts of Congress secret would allow lawmakers to ignore the interests of the people in favor of their own opinions and values. It would allow members of Congress to lie to the people about how they voted with little to no consequence. Perhaps transparency should be considered a virtue such that if maintaining transparency means lobbyists and donors get their way, so be it.

One might say getting something they consider important, like removing Trump from office, or getting stimulus to the people, or raising the minimum wage, isn’t worth the cost of allowing Congress to be unbeholden to voters. Is a democracy led by representatives who can ignore the voters really a democracy at all? Many political philosophers, like John Locke and Jean-Jacques Rousseau, have argued that government derives its power from the consent of the governed. One might hold that doing what the people want, even if it’s wrong, is more important than doing right, if it means ignoring the will of the people. A government that doesn’t act for the people may not be much of a government at all. And why should we think representatives know better than the population at large? They are only human. And more than that they are an unrepresentative sample of the country, being more white, more male, older, and wealthier than the American population.Thus, on this view, making the acts of Congress secret is untenable: it is valid only according to a consequentialist framework and anyone who disagrees with such a framework will abhor the fact that legislators will be incentivized toward dishonesty and away from democratic principles. As Aristotle wrote in the Nicomachean Ethics, to act “at the right times, with reference to the right objects, towards the right people, with the right motive, and in the right way, is what is both intermediate and best, and this is characteristic of virtue,” nothing more, nothing less. This is a far higher standard than simply weighing the consequences and one we should strive for.

Making the acts of Congress secret would be an enormous change and not one to be taken lightly. As I have shown, your thoughts on this issue can vary significantly based on which moral framework you follow. The case, at least in the short term, is clear for the consequentialist. But for the virtue ethicist or deontologist, things are far murkier. Answering this question, as with many moral questions requires us to consider which of our values cannot be crossed? Which do you value more, if one has to be sacrificed: transparency and democracy, or the people’s welfare? In any case, something needs to be changed so that the problems of political partisanship and the influence of money in politics are resolved. Making the acts of Congress may be one solution but there are surely others. Perhaps we should reform the primary system. Perhaps we should overturn Citizens United to diminish the power of donors and lobbyists. The number of ethical solutions is only limited by our creativity, something which must be trained by continual practice and reflection.

The Broader Moral Issue Behind the Filibuster

black-and-white photograph of U.S. congress in session

This week, the American Rescue Plan became law after being passed along party lines despite overwhelming bi-partisan support from state and local figures as well as voters (according to opinion polling). The massive stimulus measure has been taken as an indication that “the era of big government” is back, and indeed given the challenges faced with COVID-19, the threat of climate change, the urgent need to rebuild crumbling infrastructure, it isn’t particularly shocking that a significant share of voters now want government to be more proactive. It should be no surprise then that the Senate filibuster continues to be a lightning rod of controversy as more Democrats have called for reform. But is this just politics or are there more subtle moral concerns at stake when it comes to changing the filibuster?

Those who oppose getting rid of the filibuster tend to point to three general reasons to keep it. The first is that the filibuster is in keeping with the general philosophy behind the Constitution, specifically to prevent swift passage of laws. The second is that the filibuster protects minority rights. The third reason is more political-practical in nature; warning of the dangers of what would happen if the other side were able to do as they wish, and nothing could be done to stop it.

In response to the first reason, two important points need to be noted. In a 1995 article defending the filibuster, Bill Frenzel notes, “The Framers created our system based on their profound distrust of government […] Their intention was to prevent swift enactment of laws and to avoid satisfying the popular whimsy of each willful majority.” However even if slow government was the goal of the Constitution, it isn’t clear that the filibuster was a good means of accomplishing this. James Madison argued requiring more than majority support would reverse “the fundamental principle of free government,” while Alexander Hamilton argued that such requirements serve to “substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority.”

What is more important, however, is that the Framers of the Constitution were influenced by 18th-century political philosophy and were responding to 18th-century problems. So, the question is whether such conditions still hold today, and if we should be bound by what the Founders wanted? The answer appears to be no, as even Thomas Jefferson argued that the Constitution should be revised and updated to meet the needs of new generations. While it is tempting to think about political philosophy in a-temporal terms as establishing stable institutions to protect an invariant set of fixed human rights, we might instead consider political institutions the instruments that allow the public to conduct its business.

In response to the second reason — the protection of minority rights — the question is always one of which minority and which rights we are talking about. If we are talking about the rights of a minority of citizens against the tyranny of the majority, then we already have a solution to that; it’s called the Bill of Rights. If we are talking about the rights of a minority of Senators, then we need to ask how far those rights should be extended. The right to review and debate legislation is important for any legislator in the minority, but whether there is a right for a minority of lawmakers to effectively veto legislation is another. Senator Raphael Warnock, for example, recently posed this very question, asking whether the minority rights of Senators should outweigh the voting rights of citizens.

If we put aside the first two reasons, as, by themselves, they aren’t reasons to keep the filibuster specifically, we must address the actual perceivable consequences of making changes to lawmaking policy. For example, Mitch McConnell recently warned of a “scorched earth Senate” where Republicans would use every rule at their disposal to halt the chamber and once returned to the majority would pass all manner of laws unacceptable to Democrats with “zero input” from them.

First, it is worth noting that most other legislative chambers do not have a filibuster rule like the Senate, despite hailing from nations which rank high on the democracy index. For example, prior to the 1990s the Legislative Assembly of Ontario was far more permissive about the length of speeches, allowing one member to tie up the legislature for weeks, culminating in a 17-hour long speech. The rules of the legislature were later amended to limit the time for members to speak, but even after this filibuster was eliminated, there were plenty of opportunities for obstruction. For example, one member was able to tie up the legislature for hours by introducing a bill whose title included every lake, river, and steam in the province. The title had to be read aloud by the member and the clerk.

Despite eliminating the chance to filibuster, the sky did not fall in Ontario. Just as McConnell has threatened to tie up the Senate using tactics like having bills be read aloud, legislators in Ontario resorted to new tactics and procedural moves to obstruct which were only permitted until they also became a nuisance. Yet, what follows from jurisdictions that allow for the easy passage of legislation based on a majority vote? Firstly, it means that administrations are far more able to enact the platforms they run on. Thus, voters more often see their political preferences be reflected in law.

But this also means that a newly elected government can always repeal and replace what came before far easier. This can be problematic because it creates greater instability and uncertainty. Sometimes this happens as a major piece of legislation can be repealed in short order by a new government who may choose their own policies. Good examples in Canada include a national childcare program that was almost enacted before a newly elected Conservative government cancelled it. In Ontario, the Liberal government’s cap and trade program was abolished quickly by a new Conservative administration.

While the swinging pendulum of political winners does mean that laws and programs can be enacted and repealed more frequently, it is rarely a free-for-all either. Certain programs, policies, or laws simply have too much public support to allow new governments to wipe the slate clean. For example, even when Conservative governments enjoy large majorities and could easily do so, you don’t see them repealing programs like public healthcare because the public would not stand for it.

So would a filibuster-less Senate be a disaster? Certainly McConnell is right that even if Democrats pass all the legislation they want, Republicans can just as easily repeal it next time they’re in power and further enact all sorts of reforms that would be objectionable to Democrats. However, in the long term the back-and-forth of major legislative reforms, repeals, and replacements would not be sustainable. It is in the public’s interest to have some degree of stability even if it takes voters a while to realize this. However, this kind of legislative experimentation might make it easier for the public to connect policies and ideas with real-life consequences. It’s one thing to vote Republican if you know little can get done, it is another thing to vote Republican if you know they can and will take away your healthcare. And if they do, your future voting preferences might change. In essence, eliminating the filibuster reveals how important it will be for voters to be more informed advocates when it comes to policy and to be less inclined to knee-jerk defenses of ideology.

Reforming the filibuster may not be merely a matter of exacerbating political problems, but rather it reveals and identifies a moral one. In a time where political reform is easier without the filibuster, what kind of changes to political culture should result? What are our responsibilities to be informed when we vote? Given that fellow citizens may not agree with all of our policies and may have the option to repeal them in the future, are we obligated to seek input from opponents in order to ensure that policies have enough support not to be undone after the next election? Would a scorched-earth approach with “zero input” from the other side ever be a good thing? In essence, are we not forced to ask how we can better “get along” with opposing voter blocks and what would that look like? Could this actually lead to more compromise and less polarization? And in our present political culture, where is the line drawn between pure obstruction and a meaningful challenge from the voting minority? And if some obstruction is welcome to protect the rights of the minority, how far should those rights go?

As I said, even if you eliminate the filibuster there are other tactics that can be used, just as they were in Ontario. The issue will not just go away. The debate for the nation is not whether a legislative tactic should stick around, but about the kind of political culture we should have.

Putting Politics Aside: A Lesson in Common Courtesy?

President Obama has been making headlines lately for missing the funeral of Supreme Court Justice Anton Scalia, who passed away unexpectedly on Febuary 13th. When asked why the president would not be in attendance, his aid deflected the question, instead relaying that “Vice President Biden and Dr. Jill Biden will be attending Justice Scalia’s funeral.”

Continue reading “Putting Politics Aside: A Lesson in Common Courtesy?”