CORRECTION: An earlier version of this article incorrectly stated that Senate Democrats passed their health care plan on Christmas Eve in 2010. While the Affordable Care Act was signed into law in 2010, the Senate bill passed on Christmas Eve in 2009.
Two weeks ago, the U.S. Senate passed a sweeping tax reform bill just before 2 a.m. on a Saturday, mere hours after releasing the full text of the nearly 500-page piece of legislation.
Republicans were immediately lambasted for voting on it “under cover of darkness,” as Senate Minority Leader Charles E. Schumer put it. The bill — polling at 29 percent according to Gallup — is unpopular, something senators were undoubtedly aware of when deciding how, and when, to vote.
Legislators have recently elicited a steady stream of suspicion for working secretively to advance unpopular policies. In fact, the vote on the tax bill followed the playbook Democrats used in 2009, much to the vocal dismay of Republicans, when the Senate passed its health-care bill at 7 a.m. on Christmas Eve.
Withholding drafts of bills from the public, cutting floor debate short and voting late at night or early in the morning are seen today as procedural maneuvers that our elected officials use to subvert the democratic process.
And yet, working in secret, or “under cover of darkness,” is a tactic as old as the republic itself.
So too are debates over such procedures. At their core, such controversies reflect disagreements over the very nature of the Senate as a representative institution and, deeper still, what it actually means for our government to be representative.
Concerns about secrecy were present in debates over legislative procedures from the beginning. While the House of Representatives opened its doors to reporters and a public audience from its founding in 1789, the Senate met in secret for the first six years of its existence. The procedural decision aligned with the selection of senators by state legislatures, making it the less directly representative wing of Congress.
These procedural decisions mattered deeply. Those who called for more transparency in the Senate, and government more broadly, thought that opening up was a crucial way to make elected officials take public opinion into account and include citizens in policymaking. To them, representative government did not end with elections.
By contrast, advocates for secrecy in the new government saw bending to popular pressure as dangerous. To them, secrecy was a useful mechanism whereby elected officials could be freed to determine the best interest of the public, even when it did not appear to be popular.
So important were these debates about the propriety of secrecy in government that they became a fundamental divide between the first political parties in the United States: the Federalists and the Democratic-Republicans.
Democratic-Republican societies branded secrecy pernicious and urged vigilance over elected officials. They argued that government should be “watched with the eye of an eagle.”
It was the people’s right to “examine the proceedings of the legislature, or any branch of government,” the Republican Society of Lancaster, Pa., declared in a January 1795 address. It was “not only the right,” the Democratic Society of New York City declared in May 1794, “but the absolute duty of the people, to have a jealous eye over the conduct of government.” Working secretly not only interfered with this duty, but showed that legislators were disregarding, if not subverting, public opinion.
Federalists, however, tended to assert that working in secret was useful and proper as long as the people could evaluate the resultant laws. Paine Wingate, senator from New Hampshire, explained his thinking in a 1789 letter to Massachusetts Federalist Timothy Pickering, stating simply: “I do not desire that the private conduct or public proceedings of this body should be exposed to the dayly inspection of the populace.” Deliberating “a little more out of public view would conduce to its respectability in the opinion of the country who would then judge of that body by its public acts and doings.”
These tensions came to a head when the Senate voted to ratify the Treaty of Amity and Commerce with Great Britain in summer 1795.
Opponents called the secrecy surrounding Senate deliberations a maneuver to violate the public’s wishes. And they may have been right. Members of George Washington’s administration did strategically shield the process of negotiating the treaty away from public view, and the Senate agreed to keep the text secret as the body considered it, probably at least in part because senators knew it would be unpopular. But they also believed that the treaty was the best course for the new nation.
Secrecy allowed Washington and Federalists in Congress to act in what they thought was the best interest of the country, even if the public did not agree.
When text of the treaty leaked shortly after the Senate voted to ratify it, there was a public outcry. The City Gazette of Charleston, S.C., published the following resolutions from the popular society of nearby Pendleton County: “The constitution of the United States gives to the president and Senate the power of making treaties, but it communicates no ability to hatch those things in darkness.” Secrecy and mystery were suited to monarchies and conclaves, but were “opposite to open and republican principles.”
Others defended such uses of secrecy, insisting that in electing their representatives, the people yielded to them the ability to make decisions. “It would be mere nonsense,” Federalist polemicist William Cobbett contended, “to pretend that they [citizens] have a right to be informed of all the secrets of a negotiation, without having a right to break it off.”
This debate was never settled, and we live with its legacy today. Americans are often urged to be vigilant, to keep an eye on our elected officials and their actions. To that end, The Washington Post recently added the tagline “Democracy dies in darkness” to its masthead.
Such emphasis on the need for transparency and vigilance in a representative government harks back to the establishment of these ideals in the early republic and the enduring question of representative government: Should lawmakers continuously mirror public opinion and obey the wishes of constituents or should they lead based upon their best judgment once elected?
Today, as in the 18th century, our attitudes on the use of secrecy often come down to partisan assessments of which party we think is right and whether we trust elected officials. The stakes, however, go beyond partisanship. Our opinions on this issue carry implications for how we want political representation to work: as an ongoing reflection of popular desires or as leaders checked primarily at the polls.
These distinct visions have been in competition since before the birth of the United States, and they continue to be today.
Are the Senate’s secretive measures evidence that the recent tax bill is unpopular? Almost certainly. But focusing on these procedures and the unpopularity of the bill rather than the content of the legislation is a tacit endorsement of the idea that a representative government should make policy based on its popularity.
It is a valid view, but one that can’t easily be brushed aside when we start to disagree with what is popular. Over time, decisions about what is and is not done in public view can have a lasting impact on the very nature of representative democracy. The framers intended the use of secrecy to allow “enlightened leaders” to pass legislation that could counter short-sighted majoritarianism. As the case of the Republican tax bill shows, however, the flaw in the model is exposed when our senators aren’t as enlightened as the framers hoped.