The Non-Transparent Constitutional Convention

In his book, Political Realism, Jonathan Rauch argues that some of the changes we have made to the political system of the Untied States in the last several years have been self-defeating in regards to the functioning, efficiency, and effectiveness of our government. In particular, our ever expanding pursuit of transparency and the degree to which everything is recorded and open has made real debate with tough decisions more challenging. It is hard to have a debate with compromises where unpopular policies are discussed and worked through and more successful and effective legislation is created.

 

I was reminded of this idea from Rauch while reading Joseph Ellis’ book The Quartet. Our nation was originally founded under the Articles of Confederation, which did not pull our states together in a meaningful way to unify and promote our national interests. Replacing the Articles, however, was not a simple task and drafting a new Constitution was challenging. In many ways, the success of the new Constitution required our founding fathers to cut against many of the values they hoped the Constitution would establish for all citizens. Ellis describes it this way, “Ironically, to the extent that the delegates at Philadelphia succeeded, their success was dependent on violating all of our contemporary convictions about transparency and diversity, which is one reason why their success could never be duplicated in our time.”

 

Efforts to refine government and open up governance all start from a positive point of view, the belief that sunshine will act as a disinfectant, ridding politics of corruption and illegitimate deal making. The reality however, is that transparency and other reforms to make politics more open and clear can act as sand in the gears of our political machinery. Some debates require closed doors and safe spaces for compromises to be worked out. Getting legislators to organize together requires massive efforts of coordination and often requires conversations that take place outside of the spotlight as legislators and the people they represent have conflicting views and interests. It is worth reflecting on our ever growing pursuit of open democracy and remembering that our nation required what appeared to be non-democratic and non-transparent rules to get its start in the first place.

Participation in Government

In America we are obsessed with being more democratic than any other nation. As the world’s oldest democracy, we have made changes to open government ever further and to be more democratic so as to show the world how great we are with our ever expanding participation in government. We love our democracy, and we constantly fight to make our democracy more representative, less driven by special interests and big money, and more accessible by the average citizen. These are all excellent goals for our country, but they contribute to what Richard Pildes has called Romanticizing Democracy. 

 

In his book Political Realism, Jonathan Rauch reviews the ideas of romanticizing democracy and thinks about political participation from a realistic and pragmatic point of view. What Rauch finds and what is important to remember is that more participation in government and more direct democracy does not necessarily translate into better outcomes. He writes, “The general assumption that politics will be more satisfying and government will work better if more people participate more directly is poorly supported and probably wrong.”

 

Rauch is not arguing that fewer people should vote in elections or be knowledgeable about issues, programs, and what is taking place in government, but that our country does not need to continually reshape systems and institutions to be ever more democratic simply because they could be more open. When we push government to rely on more direct democracy, then our systems require more input from a citizenry that is poorly informed of any given issue. Continually opening government or forcing government to rely on input from public constituents makes it more likely that issues will become polarized, leading to charged discussions driven by shadow actors. Rauch writes, “Where direct engagement with politics is concerned, the polarized and financially interested have an inherent advantage.”

 

Not everything in our system should be operated by and determined by the opinions of experts, technocrats, and academics, but at the same time not everything needs to be decided by direct referendum from the public. Some features of government should be opened to the public, but other aspects are poorly understood by the public and do not need to be completely open. On his podcast The Ezra Klein Show and on his media company’s show The Weeds, Ezra Klein has often remarked that congress (which we have made more democratic and transparent) has dismally low approval ratings while the Supreme Court (which is less democratic and less transparent than almost any other part of government) has very high approval ratings. More transparency and direct participation does not always mean better outcomes and a more satisfying democracy.

Negotiations

In his book Political Realism Jonathan Rauch describes the importance of negotiations in politics. The act of negotiating is the act of coalition building, finding support for an idea, position, or program among legislators with varied interests. Negotiation needs to be creative, with all options on the board. Within a negotiation, difficult subjects and ideas are discussed to try to understand the benefits, the costs, the target populations, and issues of equality or inequality. The process is messy and like human speech, often disorganized and free flowing.

 

In the United States Federal Government, negotiations within the legislature are supposed to take place out in the open. Committee meetings and hearings are supposed to be public. Negotiations and advisory sessions are televised and open to journalists and interested citizens via the internet. The goal behind an open government is simple, let the people see and know what our leaders are up to. We want to be able to view the negotiations so that we can ensure big businesses are not running the show and to make sure our elected officials are not trading money and votes for projects and bills that we don’t like. Most of all, we want to make sure our legislators are acting ethically and not in their own self-interest.

 

This system sounds nice when we wear our moral philosopher hat, but when we put on our real world pragmatist hat we can see that our open government requirements are in a way breaking the legislative process. If we force negotiations to be public and always visible, then legislators are constrained in what can be said and considered in a negotiation. I mentioned earlier that negotiations are messy and creative, and this process involves talking through half formed ideas and as a group considering extreme ideas that an individual may not want to raise on their own. Doing this can be damaging for an individual if filmed and rebroadcast out of context, but in the moment it can help build creativity and allow decision-makers to better understand the full range of possible impacts.

 

Rauch writes the following regarding our constraints of negotiations, “If negotiations among leaders are a key to effective governance, particularly in polarized times, then we need a less moralistic, more realistic sense of the conditions under which negotiations effectively take place.” Sometimes the nation needs to move forward with legislation that is incredibly unpopular within a few legislative districts. Bills can be toxic for a given senator or member of congress, and if they cannot negotiate in the dark, then on legislation they know must move forward despite its unpopularity back home, the legislator must take a stand against the bill. In this way, a small minority becomes more powerful, and important legislation is stalled. Sunshine is great in theory, but in actual governance, sunshine can become sand in the gears.

Privacy in Politics

The work of politics requires backrooms, closed doors, and confidential communications. This reality is often undervalued. We live in an age where everything can potentially be captured on camera or shared across the country for anyone to view. In the United States we have passed laws opening up the legislative process, freeing up information and communications, and bringing transparency to the political process. We do this in the name of democracy, however, this trend has made the actual process of governing and coming to legislative decisions nearly impossible.

 

Jonathan Rauch writes about this reality in his book Political Realism and he argues that there are some things in government that have bad optics, but are necessary for a functioning political system. He writes, “In full public view, complicated deal-building is hard to do, indeed usually impossible; therefore machines tend to prefer privacy.” In order to build a coalition, leaders and individuals need to be able to bargain and compromise. A bill that may be incredibly beneficial for one group of people or for a certain state could be completely unfavorable for a different group of people or for individuals in a different jurisdiction. Anyone representing the group that does not get anything will be politically pressured to oppose the new legislation, even if it makes a huge difference for a politically sympathetic group someplace else. Deal-making, compromise, and making trades allows coalitions to be built, but this type of deal-making must be done in private. In the open, trading votes in such a way can be ruinous for more than just someone’s political career.

 

Politics requires a delicate balance between transparency and privacy. Too much privacy and we risk corruption, but too much transparency and we risk unending political gridlock with no path forward for even sensible legislation. In the United States Congress is one of the most open institutions. Congressional emails are saved, debates and meetings are televised on C-Span, and reporters swarm the capital every day. As a result, our representatives must be open about their processes, goals, and deal-making activities. What we ultimately see, is a branch of government that cannot move forward with major pieces of legislation and has incredibly low favorability.

 

In contrast, out nation’s Supreme Court is relatively well liked. It is closed from the public and allowed, even expected to have, deliberations in back rooms and behind closed doors. Decisions must be made and when they are, they are usually well accepted. I don’t think congress should operate like the Supreme Court, but I think Rauch’s argument should be taken seriously. We should find ways to allow political decisions to be semi-private and safe for legislators, so deals can be made that help our nation move forward, even if they are politically toxic for some members who must go along with the rest of congress.

Political Monopolies

Throughout his book Political Realism: How Hacks, Machines, Big Money, and Back-Room Deals Can Strengthen American Democracy, Jonathan Rauch argues that our government needs a little less sunlight and transparency to allow for good governance. His ideas are that too many rules and restrictions, too many provisions for transparency and clearness, and too many changes to make our system more democratic have led to a point where necessary parts of politics cannot take place, and as a result, our government cannot function effectively. Politics (thinking about human behavior dating back to our first human ancestors) is about coalition building, creating alliances, and cooperating for safety, growth, and group survival. When a government’s political activities have to be entirely out in the open these types of activities are hindered, and as a result, we get showmanship and political battles as acts of public coalition building. Real governance, compromise, and negotiation become impossible.

While Rauch thinks that we need more of a cover in our system for these political behaviors, he does understand how we got to this point and he does examine some of the shortcomings of our old political system which compelled people to impose such restrictions on modern day politics. When looking at political machines specifically, Rauch highlights some of the negative aspects of organized political coalitions. He writes,

“Machines seek monopolies. In order to preserve power, they will seek to manipulate rules and rule-making (redistricting, voting rules, and the like) to shape the political battlefield in their favor—often with the goal of raising barriers to entry for would-be political competitors. They also will try to get their hands on as many formal levers of power as they can, using each to reinforce the others.”

This description of political machines reminds me of modern day corporations. Rather than simply looking to out-compete and out-innovate their sector and competitors, many firms today seem to prefer gaming the system and industry to limit competition. Often corporations will argue for increased regulation and requirements because it makes it harder for new firms to enter the market and disrupt current markets. Firms also look to build monopolies and diversify across different sectors to capture markets and establish a status quo that favors their bottom line rather than the interests of society or the furthering of new products and technology. Rauch argues that the danger of our old political system of machine politics mirrors the danger of modern markets. The political landscape in one sense becomes an economic landscape, with different political coalitions competing for greater market-share (vote share) and influence.

What I find interesting and revelatory about this point of view is that ideology and beliefs take a back seat to group dominance and interests. When we operate in machines, what we favor is the preservation of our coalition, not necessarily any specific ideology. Just like in a market we may prefer a specific brand and gravitate continuously toward that brand even if competitor brands introduce better products. Often we will stick with our familiar brand and highlight the good things about the brand we like while downplaying the shortcomings. Rauch’s demonstration of machine politics reveals that we do this in our political alliances as well, favoring rules and power grabs that help our side while remaining critical and opposed to any actions taken by our competitors.

What Rauch highlights here is part of why we have implemented rules that make politics more transparent and clear. The political actions of machines are not about issues but rather power, and we are uncomfortable with that. Unfortunately however, we humans operate in this tribal manner, and without these political power games, we don’t seem to be able to coalesce around issues to foster good governance. Somewhere in the middle of where we are now and the machine politics of the past is where good governance can live and thrive, addressing our political issues while engaging the public and building teams to move government policy forward.

Political Machines

Recently (though challenged by the current presidential administration), in the United States, our trend has been toward ever increasing democracy. We have more participation in our elections, more direct election of representatives, and we all expect to have more of a voice in the political process. Along the way we have focused on high minded ideals such as transparency, direct public decision-making, and increased platforms for voicing opinions. However, as Max Weber predicted, government, organizations, and society have become and continue to grow more and more complex. Human nature, however, has not changed.

 

Jonathan Rauch from the Brookings Institute argues in his book, Political Realism, that we have made changes to our system, our government oversight, and to the political arena that are intended to bring positive consequences, but have also brought confusion and gridlock. Our efforts to fight every appearance of corruption has made it challenging to build strong parties. Our efforts to limit the influence of money in legislative voting has eliminated quid-pro-quo trades for votes between legislators. Transparency into government decisions and deliberations has combined with social media to give us great insight into the decisions and beliefs of legislators, keeping their actions under a microscope. Each of these changes sounds like a good thing, but in the end, they create a system that is almost unworkable, where participants cannot be fully human.

 

Regarding the changes we have made, Rauch writes, “government cannot govern unless political machines or something like them exist and work, because machines are uniquely willing and able to negotiate compromises and make them stick. —progressive, populist, and libertarian reformers have joined forces to wage a decades-long war against machine politics by weakening political insider’s control of money, nominations, negotiations, and other essential tools of political leadership.” Rauch is highlighting the fact that machines can build coalitions, can link together like-minded individuals on certain issues, encourage them to commit to support other issues, create safe places for debate, and break through gridlock. Our transparency in politics has limited the effectiveness of machines by broadcasting discussions. Our democratic grabs at political primaries has limited parties from directing candidate selection, and has left us vulnerable to demagogues and celebrities with unsound political beliefs.

 

I would not argue that we should try to undue all the changes we have made to our political system, and I don’t think Rauch would argue for such dramatic changes either. But what we can do, is create some spaces and institutions that operate with a greater focus on the long-term continuous political process and not on winning short term political games. One can easily argue that our system of primaries is less democratic now, because only the most ideologically extreme participate in parties, leading to the selection of candidates that do not match the public. Wrestling control of party nominations away from the public may give us more moderate and representative candidates, who actually better represent the people who are supposedly electing them in a democratic fashion. Allowing for backroom discussions within politics can also help our representatives move forward with more legislation. Forcing each candidate to openly voice their arguments for or against a bill can put legislators in a catch-22 situation, a bill must pass on a national level, but may be politically toxic on a local level. We should expect that priorities, even on small local levels, will conflict, and expecting a perfect answer from each politician for each vote is unrealistic and potentially damaging to the over all process. These are the arguments that Rauch presents throughout his book, which is designed to start a conversation around how we govern ourselves and relate to our political process. Striving for more fair, more understandable, and better democratic systems is always a good goal, but sometimes our virtues trip up the system because we are political animals who need to negotiate challenging deals, build teams and coalitions, and make sacrifices to compromise on important issues for people at local, state, and national levels.