Editor’s note: This commentary is by Offie C. Wortham, Ph.D., a retired college professor who last taught at Johnson State College. Prior to that he taught at Marist College in Poughkeepsie, New York.
“Had the deliberations been open while going on, the clamors of faction
(special interests) would have prevented any satisfactory result.”
— Alexander Hamilton … 1792
I have examined the lifespan of the gridlock in Congress and it is clear that there was a specific time in our nation’s history when the present gridlock began — when Congress stopped using the secret ballot.
Up until 1971 there was secret voting in the U.S. Congress. In 1970, the 1970 Legislative Reorganization Act was enacted, and it brought a form of transparency and “accountability” to the 92nd Congress on Jan. 3, 1971. The U.S. Congress switched from being one of the most closed institutions in history to one of the most open. Congressional voting and meetings that were once secret were thrust open in a wave of “democratic” transparency. The act fundamentally changed the way federal law is drafted. Before the reform, the vast majority of legislation (including the Constitution, Bill of Rights, Civil Rights Act and the Environmental Protection Act) was drafted, debated and amended in committees behind closed doors. For nearly 200 years, these committees weren’t just closed to the public, they also denied access to the president, the press, foreign bankers, oil company lobbyists, other members of Congress, etc. This secrecy didn’t just apply to the markup sessions; it also applied to all voting in committee. To this day we don’t know how JFK, LBJ or James Madison voted on a single amendment when they served as members of Congress.
“Among the most consequential reforms of the 1970s was the move toward open committee meetings and recorded votes. Committee chairs used to run meetings at which legislation was ‘marked up’ behind closed doors. Only members and a handful of senior staff were present. By 1973 not only were the meetings open to anyone, but every vote was formally recorded. Before this, in voting on amendments members would walk down aisles for the ayes and nays. The final count would be recorded but not the stand of each individual member. Now each member has to vote publicly on every amendment. The purpose of these changes was to make Congress more open and responsive. And so it has become – to money, lobbyists, and special interests.”
– Fareed Zakaria 2003 – “Future of Freedom”
The 1970 act encouraged open committee meetings and hearings, required that committee roll-call votes be made public, allowed for television and radio broadcasting of House committee hearings, and formalized rules for debating conference committee reports. Many of these reforms were adopted in the name of opening up the legislative process to the public eye. The reform of longest-lasting significance provided that House votes in the Committee of the Whole be recorded on request, which ended the secrecy often surrounding members’ votes on important measures. There was no way to open up the legislative process to the people without also opening it up to lobbyists and private interest groups.
How many Americans remember the time before open meetings and public roll call votes? How much did behaviors change when public monitoring began? The increases in transparency were followed by increased narrow-interest lobbying. This fundamentally altered how the U.S. Congress and state legislatures operated. Congress significantly became more susceptible to the influence of powerful outsiders and fraught with ferocious partisanship. Some of the new reforms, like mandating recorded votes were widely supported by the press and members at the time. Similar reforms were quickly mirrored in many state legislatures.
Before 1970, without any access to information, lobbying was a difficult business. The few existing lobbyists were separated from the drafting of legislation by guards and heavy wooden doors. As a result, they were often entirely unable to ferret out the legislators who chopped their amendments or edited their legislation – information that is essential to a successful lobbyist. But with the passage of the 1970 Legislative Reorganization Act, this crucial information was served up on a platter. As a result, powerful pressure groups could suddenly hold individual legislators directly accountable by offering rewards (of campaign finance) or punishments (negative advertising, etc.).
The 1970 Legislative Reorganization Act (signed by Nixon) quietly eliminated this protective secrecy overnight. Immediately, everyone on earth had access to nearly every amendment and vote “from hopper to floor.” As a result, the lobbyists (previously excluded from participation) stormed inside and have since become powerful and imposing mainstays during the writing, drafting and editing of legislation. This has been a major coup for interest groups. Since the time of Thomas Jefferson, lobbyists were forced to wait outside – in (as their name suggests) the lobby.
Mr. Trump’s presidency has pushed an already dysfunctional Congress into a near-permanent state of gridlock that threatens to diminish American democracy itself. One reason for the polarization and inability to work together is the pressure exerted by the leaders of the two major parties to grant assignments and support for any bills they recommend, and pressure to get representatives to always vote as a block and never vote for anything sponsored by any member of the opposition. Presently, not openly voting with your party could eliminate important financial aid from a PAC or major contributor. Legislators are not bad people, they have just inherited a bad system and they haven’t yet found the courage to change that system to one that is more democratic. They presently feel helpless before the influence of big money. Shouldn’t they be able to shake off that influence if voter accountability were doing its job?
How can we make it safer for our representatives to enact the changes that are in the interests of the common good? Are there ways to reduce the punitive behaviors that threaten those who would change? Are there safeguards that can be introduced that raise our sense of security? Is there a step-by-step approach that makes it easier for both parties to move toward the common good? Yes, anonymous voting, wherein the voter’s recorded vote may be recognized by the voter but not by others. Maintaining the legislature’s nonpartisan nature is more important than any small loss of transparency from casting ballots secretly.
One of the key flaws in our current democratic system is public/recorded voting in Congress. It encourages transparency and accountability of Congress but it also enables the sale of votes to others, powerful lobbyists, and conditional campaign donations. How do the voters really feel about this? Could secret-ballot voting to be part of the solution to re-establish real democracy? We need to help the representatives work in service to the interests of their constituents rather than to follow their own narrow positions.
Secret voting prevents the party leaders from controlling the vote of any of their party members, and it allows each legislator to vote for a bill on its merits and what they believe is in the best interests of their constituents. Congress is now more polarized than at any time since the end of Reconstruction. It is hopelessly gridlocked, and predicted to get worse when the Democrats control the House. We need a major political reform to fix it. Secret voting in Congress is a possible solution.
The open access has distorted the dynamics between legislator and lobbyist. This has resulted in an enormous gain in power for special interests and a resulting loss of power for the people. The result is that Congress has flipped from being the people’s representative in the 1970s to today’s fearful corporate handmaiden. “Surveys of senators have concluded that open meeting requirements were the largest single cause of a decline in the ability to negotiate and to make politically difficult trade-offs.”(From The Congressional Research Institute. “Academic Citations on the Pitfalls of Congressional Transparency.” David King, November 2014) The more political we make the process; the less we will be able to do what is right.
