Transparency v. Deliberation
Members consequently use their positions to build personal brands and to excite fans and followers.
But these trends have been greatly exacerbated by a further transformation that does not get enough attention: the loss of protected spaces for deliberation in Congress in the name of transparency. Every institution needs an inner life — a sanctum where its work is really done. This is especially true in a legislature, where members must deliberate and bargain to reach practical compromises. There is no such thing as bargaining in public.
The American constitutional system owes its origins to its framers’ understanding of that fact. The Constitution was conceived by a convention held behind closed doors. “Had the deliberations been open,” Alexander Hamilton argued in 1792, “the clamours of faction would have prevented any satisfactory result.” The point was not to keep out the public’s interests and views—the members present still spoke up for their states. The point was to provide a protected arena to work out deals. By retreating to a private space to deliberate, the convention’s members were able to try out ideas, let proposals be floated, and avoid embarrassing one another in public or using one another as props. Decades later, James Madison told the historian Jared Sparks that he thought “no Constitution would ever have been adopted by the Convention if the debates had been public.”
But Congress has progressively lost its inner life, as all of its deliberative spaces have become performative spaces, everything has become televised and live-streamed, and there is less and less room and time for talking in private. By now, about the only protected spaces left are the leadership offices around midnight as a government shutdown approaches, so it is hardly surprising that this is where and when a great deal of important legislation gets made.
Administrative agencies offer another cloistered venue for negotiation and bargaining, and so significant legislative power has moved to those agencies, where it can be exercised effectively—but not legitimately. Conservatives rightly complain that legislative power without legislative forms can easily become tyrannical, but we tend not to notice that a major driver of this shift in recent decades has been Congress itself, which has altered its own forms and functions in ways that have crippled its ability to act legislatively.
All of this has happened in pursuit of transparency. And transparency is a good thing, up to a point. Without it, institutions that serve a public purpose can easily become debased and unaccountable. But every good thing is a matter of degree, and political reformers have treated transparency as a benefit with no costs, when in fact it can have enormous costs that have to be accounted for. In this case, the price can be measured in a loss of bargaining spaces, and the result of ignoring it is a Congress that increasingly has the appearance of a show.
