By Nancy Scola
At 8:39 p.m. yesterday, a Sunday, the House of Representatives Committee on Rules quietly approved a resolution that would waive a congressional rule requiring a few days' worth of public posting of bills before they're voted on -- an exemption applicable only to bills considered by the House on December 31, 2012.
If you're paying attention, you'll notice that December 31, i.e. today, happened to be the last day Congress had to act before the country passed over the so-called "fiscal cliff" of tax increases and spending cuts. It looks now like we will go over the cliff, and that Congress will vote on a deal in the next day or two making any fixes retroactive.
But the approval of the Sunday-night resolution suggests that, no matter what happens in the next few days, Congress can't succeed -- that, in fact, it has already failed. Congress now operates in a such a state of continual chaos that transparency has become an impossibility and success is defined only by the endpoint -- reaching a deal. Lost in the frantic, last-minute cramming of legislation onto the calendar is the notion that successful legislating might require that members of Congress show their work.
Two weeks ago, the big transparency advocacy groups like Public Citizen, the Sunlight Foundation, and the Institute for Policy Innovation called on President Obama and congressional leaders to do just that. "The undersigned organizations," the statement said, "are concerned that negotiations around averting the 'fiscal cliff' may take place entirely in secret, and policy decisions will be passed down to the public as a fait accompli, with no public input or resulting accountability." The organizations had specific requests: Post bills online for 72 hours before a vote; release in real-time details on any lobbyist meetings; and disclose any "side deals" for future legislative consideration, a la the health-care law negotiation's "Cornhusker kickback," in order to "establish if they represent the public's interest."
In other words, this coalition made the same requests we've heard throughout the last decade of conversation around government transparency. These are what you might call "hard-line requirements." Boehner has called for -- and House rules support -- a 72-hour period for the public posting of legislation, the details of which have been contested since the idea's birth. During the fight over defunding NPR, then-member Anthony Weiner led a spirited debate over whether the relevant bill broke that rule, with Congress descending into a debate over whether the spirit of the rule was simply for three calendar days of public posting before a vote. Obama, for his part, has been slammed over the daylight between his pledge to include C-SPAN's cameras in the health-care negotiations and how those negotiations actually played out. This time around, tax activist Grover Norquist has described himself as "a strong advocate of having C-SPAN cameras in the negotiating room so you wouldn't have this situation where the president's spokespeople say one thing happened in a meeting when the people in the meeting said the opposite happened."
Norquist's embrace suggests some of the challenges baked into that kind of transparency. Mightn't the presence of C-SPAN cameras inside a negotiating room encourage lawmakers to preen and posture even more? On top of that possibility, such hard-line transparency asks obscure the softer expectations for openness that the system is also failing to meet.
With the so-called fiscal cliff, it's been a messy rush to the finish, and in a hundred different little ways the public has been prevented from engaging in the process. CBS White House correspondent Mark Knoller complained that even reporters like himself were having trouble gaining information. "Sure would be nice if Pres Obama's meeting today with Congressional Leaders was open to press coverage," Knoller tweeted on Friday. "Or we were to get a live audio feed." There's also fact that this whole episode is reaching its conclusion on New Year's Eve.
It's not as if any of what needed deciding was a real surprise. Congress has known it was a possibility since the resolution of the debt-ceiling debate in 2010. Its behavior this week is akin to packing for a long-planned trip by throwing everything into a giant black garbage bag -- something generally frowned upon in polite society.
Political scientists will tell you that chaos is great for passing measures that would be difficult for the public to swallow under calmer circumstances. But if your goal is to engage people in the work of democracy, it's terrible. Structure is a prerequisite to participation.
That's one real lesson from the flourishing of web technologies over the last few years, actually; the application programming interface, or API, is the structure that lets one piece of software talk to another. The trick is publicly stating what it is you're up to. In a real way, transparency has let tiny developers build world-changing, or at least really neat, tools off of platforms like Facebook and Twitter.
By contrast, it's very difficult to plug into chaos. And we shouldn't underestimate the degree to which people -- representatives and senators included -- assume that the fault for their ignorance is their own, rather than a product of the fact that there's no good information to be had. Consequently, they'll nod their heads and go along rather than be exposed as not understanding the mess that has been made of things.
The sacrifice of any effort at transparency during the fiscal debate points to what might be the most damning charge against Congress: Not only is it dysfunctional, it's dysfunctional in ways that corrective systems can't fix. The cobbling together of a last-minute deal doesn't change that.