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February 5, 2007

sunlight, the best disinfectant

In 2006, Senator Jon Tester (D-MT) and Rep. Kirsten Gillibrand (D-NY) defeated incumbents who were tied to Jack Abramoff--our latest exemplar of a corrupt lobbyist. In an effort to demonstrate their own commitment to "transparency," Tester and Gillibrand pledged to disclose their daily schedules for all to see. See Tester's schedule here and Gillibrand's here.

Lindsey Layton (who met with Tester at 2:15 pm on January 30, according to the Senator's public schedule) describes these online diaries in The Washington Post. Layton writes, "Richard A. Baker, the Senate historian, cannot find a precedent for what Tester and Gillibrand are doing." But there is precedent for the underlying principle. In 1905, as governor of Wisconsin, Robert M. LaFollette signed a bill of which he was particularly proud:

The statute prohibits such lobby agents or counsel from having any private communication with members of the legislature upon any subject of legislation. The lobby is given the widest opportunity to present publicly to legislative committees, or to either branch of the legislature, any oral argument; or to present to legislative committees or to individual members of the legislature written or printed arguments in favor of or opposed to any proposed legislation; provided, however, that copies of such written or printed arguments shall be first filed in the office of the secretary of state. This law rests upon the principle that legislation is public business and that the public has a right to know what arguments are presented to members of the legislature to induce them to enact or defeat legislation, so that any citizen or body of citizens shall have opportunity, if they desire, to answer such arguments.

Since I came to the United States Senate I have steadfastly maintained the same position. Again and again I have protested against secret hearings before Congressional committees upon the public business. I have protested against the business of Congress being taken into a secret party caucus and there disposed of by party rule; I have asserted and maintained at all times my right as a public servant to discuss in open Senate, and everywhere publicly, all legislative proceedings, whether originating in the executive sessions of committees or behind closed doors of caucus conferences.

I can imagine two rebuttals to LaFollette's argument. One is that people ought to be able to petition elected officials secretly, because disclosure can have a chilling effect. For example, in the present climate, Members of Congress might be less likely to meet with Muslim groups if they had to reveal every meeting. But Muslim groups, like all groups, have a constitutional right to petition the government for redress of grievances.

Tester's schedule shows meetings with many mom-and-apple-pie associations, such as "parents of children with disabilities" and the "Inter-Tribal Bison Cooperative." It is conceivable that he wouldn't want to show contacts with more controversial organizations and would therefore refuse to see them at all.

The second argument is that secrecy actually protects elected officials from undue pressure from lobbyists. Senator William Packwood (R-OR) once said:

Common Cause simply has everything upside down when they advocate 'sunshine' laws. When we're in the sunshine, as soon as we vote, every trade association in the country gets out their mailgrams and their phone calls in twelve hours, and complains about the members' votes. But when we're in the back room, the senators can vote their conscience. They vote for what they think is the good of the country. Then they can go out to the lobbyists and say: 'God, I fought for you. I did everything I could. But Packwood just wouldn't give in, you know. It's so damn horrible'." (Quoted in Birnbaum and Murray, p. 260)

Both rebuttals presume that politicians are well-intentioned and will behave better in secret than they do in public. In fact, that is occassionally true. But on balance, I think we'd be better off if Members of Congress felt they had to disclose all their meetings. Requiring such disclosure would probably violate the First Amendment. But making a habit of it would be a good thing. Tester and Gillibrand have, at the least, launched a worthy experiment.

February 5, 2007 7:49 AM | category: none


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