Transparency Is Killing Congress

In December, when the Politico reporters Marianne Levine and Burgess Everett interviewed Senator Kevin Cramer, the freshman Republican from North Dakota offered a peculiar perspective on his job.

After he answered an assortment of questions about President Trump and the Democrats with his trademark entertaining bluntness, Levine and Everett asked Cramer if his ambitions extended to rising up the ranks and chairing a major Senate committee someday. Cramer said he not only didn’t seek such responsibilities, he pretty much pitied those members of Congress who had them. “I often look at them, I think, ‘Why would anybody want that job? Isn’t that terrible?’” he said. “I love all of them but I always say: ‘Gosh, I don’t know … Seems like it would tie up a lot of your energy.’”

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Cramer might be more frank than some of his colleagues, but he was speaking for many of them. And the sentiment makes you wonder, what exactly is a senator’s energy for? These days, the answer has less to do with legislation than with public performance.

Congress isn’t doing its job. That much has become painfully clear in this century. Legislation barely moves, the budget process has not functioned properly in years, members of both parties are frustrated with their leaders, and the institution has long been surrendering its power to administrative agencies, presidents, and judges. But if Congress isn’t doing its job, just what exactly is it doing? Members aren’t sitting around. Their lives are frantic and intense. But how might we describe what they are busy with?

For one hint, consider Republican Senator Ted Cruz’s decision to launch a daily podcast for the duration of the Senate’s impeachment trial of President Trump. As his co-host, the conservative commentator Michael Knowles, put it on the first day of the trial: “Each night, the senator will head straight from the Capitol to our studio to give you a behind-the-scenes look into the impeachment trial and so much more.” The show, unironically entitled “Verdict With Ted Cruz,” soon topped the political-podcast rankings.

Or consider a glowing profile of Representative Alexandria Ocasio-Cortez, the star freshman Democrat from Queens, in New York magazine in January. “She isn’t especially interested in compromising with those who don’t share her values,” New York’s David Freedlander wrote. And when he asked Ocasio-Cortez if she might be overemphasizing the show-business facets of her job at the cost of traditional legislative work, her answer was:

Representative Matt Gaetz, the eminently quotable Republican from Florida, expressed a similar sentiment to BuzzFeed’s Alexis Levinson in 2018. Asked if he was concerned that he was gaining notoriety rather than prominence by jumping into every cable-news controversy, his answer was: “What’s the difference? People have to know who you are and what you’re doing if your opinions are going to matter.”

These relatively young members, and many politicians like them, are implicitly answering the question raised by Congress’s dereliction of some of its core functions: What are our representatives doing with their time and energy? They are performing. They are treating Congress as a particularly prominent platform for commentary, channeling the frustrations of their voters, elevating their own profiles, and perpetuating the endless melodrama of our culture war. They are so focused on that performance that their actual jobs can seem like a distraction.

They are not alone, of course. The president approaches his job as a kind of performer in chief, offering commentary about the government as much as directing its activities. And well outside of politics, our understanding of the purpose of many of our institutions has been transformed from seeing them as molds of behavior and character to seeing them as platforms for performance and virtue signaling. (My new book, A Time to Build, traces this pattern across the range of American institutions.)

But this sort of dysfunction has been particularly evident, and particularly damaging, in Congress, because a legislature’s basic function is negotiation—a kind of work very much at odds with an ethic of performance.

Congress, like any serious institution, functions by socializing its members to work together. By establishing rules and norms, avenues to recognition and status, and a commitment to the strength and purpose of the institution itself, it gives shape to a type of human being who can be called a member of Congress. For much of our history, newly elected members would be gradually formed into this distinct type over the course of their time in the institution—bringing their individual points of view, priorities, strengths, and weaknesses to the table but using them to fill out the job of the legislator, to pour themselves into it and take its shape.

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These norms had their downsides, frustrating efforts to reform Congress, and creating some distance between members and the public they represented. But they also yielded great benefits—forming legislators who would play their assigned role in our system and defend the legislature’s prerogatives.

But when those members look to the institution as a means of displaying themselves rather than letting it form their ambitions into agendas, they do not become socialized to work together. They act like outsiders commenting on Congress, rather than like insiders participating in it. Much of what they say and do, even in private discussions with colleagues, is intended not for their peers but for an outside audience that wants to see a dramatic enactment of culture-war animosities.

This has changed the character and the persona of some legislators. Queen Victoria once complained of William Gladstone that “he speaks to me as if I was a public meeting.” Time spent with many members of Congress today has this same feeling about it. Too many have just one mode—a performative mode intended to go viral. And in that mode, Congress cannot function.

Such members often don’t much care what other legislators think of them, because their standing and prospects don’t depend on their colleagues and because they are not engaged in common work but in a spectacle put on for others. This engenders a distorted set of virtues and abilities: a form of courage that involves being willing to anger other politicians in order to cater to a small group of devoted followers, and a form of professionalism that is about sticking to the livid cultural script rather than playing an accommodating constitutional role. Such members try to gain status and prominence by endlessly scorning the institution they worked so hard to enter.

This sort of attitude was particularly prominent among Republicans in the Obama years but has spread to the Democrats in the Trump years. It has been driven in part by a centralizing tendency in Congress that has put nearly all of the power to set the agenda and move legislation in the hands of a small group of leaders in each house, leaving most other members with little real legislative work to do much of the time. Meanwhile, changes in the cultural and media environments surrounding the political system have made dramatic outrage the coin of the realm. 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.

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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.

The push for transparency in Congress, which gained steam especially in the 1970s, was a response to congressional intransigence in the face of social change, and to some undeniable corruption in the institution. Beginning with the large post-Watergate class of Democratic members in 1975, rules and norms governing seniority were overturned, and the inner workings of the institution were exposed to the sun for the first time. In 1979, a new cable network called C-SPAN began televising live all floor activity in the House of Representatives. By the mid-’80s, Senate-floor action was also televised, as were committee hearings in both houses.

The case for transparency was broadly persuasive, and it would be hard to deny that transparency has done some good. The dangers of the (now mostly metaphorical) smoke-filled room—where power is exercised out of sight and without accountability—are real and serious. And C-SPAN is in most respects a godsend. But when an institution becomes too thoroughly transparent, it becomes indistinguishable from the open public space around it, and so it is simply another arena for public speech rather than a structure for meaningful action.

The committee system is where televised transparency has done real damage. The floors of the House and Senate have never really been great venues for deliberation. But committee work frequently did involve real negotiation and bargaining. It is where the legislature’s hardest work is done.

Those few committees that function behind closed doors help prove the point. Many members of the Senate Intelligence Committee, for instance, describe their work on that committee as their favorite part of their job, and the reasons they offer fall into a clear pattern. Members of both parties can talk to one another, learn together, find shared priorities, and reach agreements. In the absence of the pressure to act out stylized cultural combat, they find real pleasure in doing the work of legislators. But in most other committees, too many hearings now basically consist of a bunch of individuals producing YouTube clips to use at election time.

Therefore, the committee system is where some responses would be most reasonable. House and Senate floor debates will surely continue to be televised, and formal committee hearings will too. There is no going back from such concessions to transparency; members can only build around their disadvantages. But such building is possible for the congressional committees. Panels in both houses could openly treat hearings as public performances and officially use them for that purpose while formally organizing a new mode of doing core legislative work: private, bipartisan gatherings devoted to floating proposals and hammering out legislative deals.

Such modest steps could pave the way for more over time. But more important, they could begin to reestablish a culture of bargaining in Congress, and an interior institutional life that could help members learn to channel their ambitions toward prominence in legislative work rather than camera-ready performances. Acknowledging the costs of transparency and acting to counter them could help senators and representatives see just where their energy should be directed, and so set Congress on a path back from dysfunction.